Tip Tuesday! FMLA violation? Worker said he was sick, walked off the job and was fired

by Christian Schappel

Here’s a scenario any manager could learn a valuable FMLA lesson from. 

An employee gets into an argument with his supervisor. A while later, still a little shaken up from the argument, the man begins to experience chest pains. He then tells a co-worker he thinks he may be having a heart attack.

The employee then tells the co-worker to tell their supervisor that he’s leaving for the day as a result of his symptoms, which the co-worker does.

But it was a well-known company practice that employees had to inform a supervisor directly before leaving work.

So the company fired the man that afternoon. The employee then sued, claiming FMLA interference (shortly after his termination had been processed, he submitted paperwork that he was suffering from a serious health condition).

Was this interference?

That’s how it happened … for real

This is the story of Randy Greene, a truck driver, and his employer YRC Inc., a freight company.

Greene thought he might have been having a heart attack, so he left work without completing his route for the day.

YRC essentially took this as a “voluntary quit” and processed his termination.

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Tip Tuesday! 3 topics your 401(k) investment committee probably needs to revisit

by Tim Gould


Is your 401(k) investment committee doing everything it should? With the feds starting to take a more active role overseeing companies’ retirement plans, that’s a question that needs to be examined on a regular basis.  

As employers are well aware, the DOL has said a few execs acting as a plan sponsor isn’t enough to constitute an “independent review” of the plan and satisfy a plan sponsor’s fiduciary responsibilities.

Committees should be made up of a broad sample of the company. Example: A few senior execs (CFO or vice president), some department heads and HR or benefits reps.

The big 3

Here’s what a committee should be tackling on a regular basis, according to Mercer senior defined contribution consultant Bill McClain.

1. Government regs. In recent years, the feds have taken a strong interest in employers’ retirement plans. So committees must be able to understand exactly how these complex regs apply to their situations.

Because this often requires expert understanding, many committees go to a plan advisor for a simple breakdown of confusing reg issues.

Another best practice that helps with this topic: Looking at actual lawsuits and what the companies being sued could’ve done differently.

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Tip Tuesday! 3 awkward conversations DOL’s new overtime rule will spark

by Christian Schappel

Are you ready for the three most difficult conversations you’ve had in a while? 

The DOL’s changes to the FLSA white collar overtime exemption regulations aren’t just going to be a financial headache for employers; they’re also going to be a managerial dilemma.

If the final rule resembles anything close to the DOL’s proposal — which would crank up the minimum salary threshold for all exempt employees to $50K (or at least $47K) — large chunks of some companies’ workforces are about to go from exempt to non-exempt.

Financial implications aside, that creates a huge management problem: The change in classification could feel like a demotion to employees.

They’ll blame the DOL, right?

If you think employees will curse the Obama Administration for what could essentially be an overnight change in their work arrangements/classifications, you’re in for disappointment.

Odds are the average worker’s going to blame you, their employer. After all, not everyone keeps up to date with what the feds are doing. So, on its face, the shift from exempt to non-exempt status may come off looking like something your company did for its own benefit — unless you’re willing to set the record straight right now.

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Tip Tuesday! Here’s what trashing resumes, applications can cost you

by Christian Schappel

A recent settlement of an EEOC lawsuit is a powerful reminder of just how important it is to retain job seekers’ application materials — and what it can cost if you fail to. 

Last fall, HR Morning reported that Coca-Cola Bottling Company of Mobile, an Alabama-based subsidiary of Coca-Cola Bottling Co. Consolidated, was being sued by the EEOC.

The agency claimed that soda maker and bottler twice violated federal law when it refused to hire Martina Owes.

Specifically, the EEOC accused Coca-Cola of:

  • Sex discrimination. The EEOC claimed Coke violated the Civil Rights Act when it refused to hire Owes. It said the company hired two less-qualified men to fill vacant warehouse positions over Owes, despite the fact that she had all of the warehouse and forklift experience required for the positions.
  • Recordkeeping violations. The agency also claimed Coke violated federal recordkeeping requirements by not preserving all of the application materials related to those positions.

The agency sued only after attempts to reach a settlement through its conciliation process failed.

But, apparently, Coke had a change of heart while preparing its defense strategy. The EEOC just announced that it has reached a settlement with the Mobile bottling plant.

What’s it going to cost?

Coca-Cola has agreed to pay Owes $35,000 to settle all the charges against it.

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Tip Tuesday! Workers can get away with what? A ruling you have to see to believe


A U.S. appeals court just issued some news employers will find very disturbing: There are times when employers have to just stand by and watch their workers disparage their businesses. 

Grab a vomit bag. This could make you a little sick (pun intended).

What happened?

A group of workers employed by MikLin Enterprises Inc., the owners of 10 Jimmy John’s sandwich shops in the Minneapolis-St. Paul, MN, area, asked MikLin for sick leave benefits.

And when the employer declined, the employees hung posters in public near its 10 restaurants.

The poster depicted two identical sandwiches sitting next to each other.

Displayed over one were the words:

“Your sandwich made by a HEALTHY Jimmy John’s worker.”

And over the other:

“Your sandwich made by a SICK Jimmy John’s worker.”

Click [more] to continue reading. 


Tip Tuesday! OSHA increases fine 400% for failing to report employee injuries

by Christian Schappel

Heads up: OSHA has cranked up the fine for failing to report workplace injuries in the time required.

OSHA just issued a new guidance memorandum — Revised Interim Enforcement Procedures for Reporting Requirements under 29 C.F.R. 1904.39 — to its inspectors. But there’s a clear warning in it for employers as well: Follow OSHA’s reporting requirements or pay dearly.

The memorandum raises the maximum penalty for not reporting fatalities, hospitalizations, amputations and eye losses from $1,000 to $5,000 — that’s a 400% jump.

It does not, however, change an area director’s authority to raise the penalty to as much as $7,000 if he or she determines the higher fine is necessary to create a “deterrent effect.”

What’s required?

Under OSHA’s new reporting rules, which took effect in 2015, here’s what employers are required to:

  • Report the death of an employee as a result of a work-related incident within eight hours. This applies to fatalities that occur within 30 days of the work-related incident.
  • Report all work-related in-patient hospitalizations of at least one employee within 24 hours.
  • Report all work-related amputations within 24 hours.
  • Report all work-related losses of an eye.
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Tip Tuesday! Warning: Managers & HR pros can be personally liable for FMLA violations

by Christian Schappel


Courts have ruled that managers and supervisors can be held personally liable for FLSA violations. And now, in a new twist, courts are saying you can be individually liable for FMLA violations as well. Here’s why and when. 

In a nutshell, the FMLA says that an employer can be:

“… any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer …

And employers can be held liable for FMLA violations — even if those “employers” are individuals within a company.

So how do you determine who qualifies as an employer under the law? Courts have recently ruled that the FMLA’s definition of employer closely tracks the definition of employer under the FLSA and, therefore, have reasoned that the standards used to evaluate employers under the FLSA should be applied to FMLA cases as well.

In other words, courts can look at the “economic reality” of a situation to determine an individual’s level of control over an employee — and, thus, that individual’s liability under the FMLA.

Employee claims HR director is liable

Recently, the U.S. Court of Appeals for the Second Circuit used this very line of thinking to determine that Shaynan Garrioch, the director of HR for the Culinary Institute of America (CIA), could potentially be held individually liable for FMLA violations allegedly committed against Cathleen Graziadio, CIA’s payroll administrator.

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Tip Tuesday! New ADA guidance reveals 8 things employers need to know

by Christian Schappel

The ADA’s interactive process has been one of the more vexing aspects of employment law recently. 

Not only has the EEOC ramped up its oversight of this complex area, but the regulations surrounding the interactive process don’t paint a black-and-white picture of what exactly employers need to do.

Interactive process: a definition

As you know, the need to initiate the interactive process with an employee occurs when an employer first finds out that the employee is suffering from a disability that may affect the person’s ability to perform his or her job.

In a nutshell, the process requires the employer to “interact” with the employee in an attempt to seek out a reasonable accommodation for the disability that would allow the employee to continue to perform the essential functions of his or her job.

The problem is, the EEOC has said the process will likely be different for every employee. As a result, employers must approach it on an individual basis — no templates, scripts or specific step-by-step process instructions.

As a result, employers are struggling to know what they can and can’t do when an employee requests an accommodation (or when the potential need for one becomes known).

Click [more] to contiue reading. 


Tip Tuesday! Meet the bill built to stop the overtime rule changes

by Christian Schappel

Senate and House Republicans want the Obama administration to do a little more research before pushing through its changes to the FLSA’s white-collar overtime exemption regulations. 

Legislation has been introduced in both branches of Congress to put a stop to the DOL’s final rule on the overtime exemptions, which was just submitted to the White House’s Office of Management and Budget for review — the final step before the rule is made pubic with an effective date.

The bill is called the Protecting Workplace Advancement and Opportunity Act. It would require the DOL to conduct a comprehensive economic analysis on the effect the overtime reg changes would have on small businesses, nonprofits and public employers before it’s officially on the books.

If passed, the bill could potentially accomplish two other things:

  • It could push the DOL’s final rule far enough into the future that it would be at the mercy of the next Congress and president. As you may recall, the Congressional Review Act says that if a major rule is submitted to Congress with fewer than 60 legislative session days on its calendar, the next Congress gets 60-days to consider the rule.
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Tip Tuesday! IRS: Scammers targeting HR and Payroll this tax season

by Tim Gould

Every year cybercriminals prey on unsuspecting taxpayers with a variety of scams and phishing schemes. This year is no exception, but it looks like the bad guys are taking aim at HR pros, as well.  

In fact, the IRS has issued a specific alert about a scam that’s specifically designed to trick HR and payroll pros into providing personal info on employees.

A message from the CEO

Here’s what HR pros need to know: The HR/payroll-specific phishing scheme is a variation of a “spoofing” email. Essentially, the email is made to look as though it came from within the actual company — such as from a CEO or other high-ranking executive.

A common example the IRS is seeing involves an email from the CEO to a company payroll or HR employee. In the email, the individual/individuals posing as the CEO will ask the employee receiving the email to provide a variety of personal information for “review” by the exec.

And it appears this scheme has worked on a number of occasions. IRS Criminal Investigation is already reviewing a number of cases where HR and payroll pros have been tricked into sharing social security numbers with cybercriminals.

Click [more] to continue reading.

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