What Employers Need to Know About Medical Marijuana and The Workplace

As of today, eight states and the District of Columbia have decriminalized or legalized the use of recreational marijuana, and 30 states have adopted measures to legalize medical marijuana use.  Prior to the legalization of marijuana in some states, employers could simply terminate employment for employees or rescind job offers from prospective employees if they tested positive for a prohibited or controlled substance.  However, employers are now faced with an ill-defined problem since over half of the states in the United States have legalized the use of medical marijuana.  In states where medical marijuana is legal, it is imperative that employers review their company policies regarding the use of medical marijuana to avoid the risk of expensive and unwanted litigation arising under state law claims.

Although marijuana remains a Schedule I controlled substance and is still illegal under federal law, many states, including New York, have passed legislation providing medical marijuana users with employment protections under state disability laws.  Hence, a blanket policy prohibiting the lawful use of marijuana may no longer be legal in states that have adopted reasonable accommodation laws for the use of medical marijuana off duty.  Employers must address any legal issues that arise out of marijuana usage on a state-by-state basis.

Despite the fact that some states categorize medical marijuana users as having a disability, federal law does not follow suit.  For example, the Americans With Disabilities Act (ADA) provides employee protections from discrimination on the basis of a disability and requires employers to provide a reasonable accommodation to an employee with a disability to enable the employee to perform the essential functions of his/her job (unless such accommodations impose an undue hardship on the employer).  Although individuals with disabilities that typically qualify for the employee protections under the ADA are often prescribed medical marijuana as part of their treatment, the ADA specifically excludes protections for individuals with a disability who currently engage in the use of drugs deemed unlawful by the Controlled Substances Act (CSA).  Since marijuana is still a prohibited Schedule I Substance under the CSA, courts will generally find that employers do not have to accommodate the use of medical marijuana under the ADA.

However, employers in states that have legalized medical marijuana may need to accommodate an employee’s use of medical marijuana.  For example, in 2014 New York passed the Compassionate Care Act (CCA) that legalized the use of medical marijuana for seriously ill patients under the care of a doctor’s orders.  The CCA only permits the use of medical marijuana for certain approved conditions including cancer, Parkinson’s disease, epilepsy, HIV/AIDS, multiple sclerosis, inflammatory bowel disease, and Huntington’s disease.  Under the CCA, patients who are “certified”, meaning they are prescribed medical marijuana, are categorized as having a disability under the New York State Human Rights Law.  Employers with four or more employees may not refuse to hire nor can they fire an employee based on their status as a medical marijuana card holder.  Further, the CCA requires employers to make reasonable accommodations for those employees.  Employers may be vulnerable to an employment discrimination claim should they refuse to hire or if they terminate an employee who is legally permitted to use medical marijuana.

Drug testing employees for marijuana in states that have legalized medical marijuana has created a hazy problem for employers.  Random drug testing used to provide employers with an obvious method to enforce the company’s zero-tolerance policy for marijuana.  However, unlike a breathalyzer test for alcohol, drug tests for marijuana are unable to yield the precise results to indicate impairment.  Since marijuana may take a long period of time to be metabolized out of an employee’s system, routine testing for marijuana can lead to many false positives.  For this reason, employers in states which have legalized medical marijuana must tread very carefully when making employment decisions based on an employee’s positive drug test.

Even in states where medical marijuana users are afforded employer protections under state law, employees who use medical marijuana on the job will not be shielded by state laws.  For example, in New York, the CCA does not bar an employer from enforcing a policy that prohibits employees from using a controlled substance while performing job duties.  Additionally, the CCA does not require a business to take any action that could potentially violate a federal law or cause the company to lose funding.

It is also important to note that employers in safety-sensitive fields or who have federal contracts in states where use of medical marijuana is legal, may not have a choice regarding their stance on the use of medical marijuana.

In light of the recent legalization of medical marijuana, here is what employers in states such as New York, Connecticut and Delaware can do to comply with both federal and state laws:

  • Review the current state regulations where the employer operates to determine whether their substance use policy should change.
  • Review all job descriptions that are related to safety-sensitive positions.
  • Communicate to all employees and potential job applicants through a written memorandum the company’s drug screening policies and the consequences of the use of those substances on the job and positive test results.
  • Explain the process and procedures of how employees who are deemed certified to legally use medical marijuana may seek reasonable accommodations if necessary.
  • Train all managers and supervisors on the proper procedure to handle the potential use of marijuana on the job and how to identify signs of use during work hours.
  • Educate and inform all managers and supervisors on the appropriate manner in which to handle “for cause drug testing.”
  • Obtain approval from professionals prior to finalizing all policies.

Even though many states have legalized the use of medical marijuana, employers who still feel strongly about their employees steering clear of marijuana must explicitly state their position by adopting and implementing a clear company policy outlining their expectations and consequences of a positive test result.  Employers will still be able to reserve their right to legally terminate employees for their recreational use of marijuana, but not medical use of marijuana, if the employer enforces a prohibitory policy at the workplace.



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Cocktails & Co-Workers: 10 Helpful Hints to Avoid Disaster at This Year’s Company Holiday Party

With the holidays just around the corner, many employers plan to host a holiday party.  Holiday parties are a great way to show appreciation for employees, enhance teamwork, and allow employees to form a different type of bond aside from what they do on a day-to-day basis in the 9-to-5 world.  Whereas these events intend to enhance workplace spirits, holiday parties can land employers in hot water if they are not careful.  Before planning your holiday party, consider the potential liabilities that could accompany your event.  Many situations that could result in liability for your company can easily be prevented with some foresight.

Here are some steps you can take to protect both your company and your employees:

Limit the hours.  Start the event right after work so employees don’t have the chance to pre-party before they arrive.  The party should also be limited to about three hours to avoid letting any guest become too intoxicated.

Make the party voluntary.  While it would be nice for all of your employees to attend the holiday party, don’t make it a requirement.  Remember that some employees may already have plans or other commitments.  It might be a good idea to make the party during the week so it is less likely employees will have conflicting plans and because employees are less likely to binge during the week.  Also, it could possibly create wage confusion and problems if the party is mandatory for employees to attend.

Limit the alcohol.  Although this might sound obvious, many people do not know what limiting alcohol looks like at a party.  While completely nixing alcohol at your party will minimize a lot of risk, employers do not have to go that far to reduce liability.  One suggestion is to prohibit executives from drinking or limit them to just one alcoholic beverage.  This isn’t to say that executives can’t have fun, but employers want executives to be the eyes and ears of your company to ensure everyone else is safe and on their best behavior.  Another idea is to hire professional bartenders or work with your vendor to set parameters for serving alcohol.  It might be a good idea to instruct bartenders not to serve shots, serve light pours, or have a designated cut-off time.  Employers may choose to host a cash bar where employees purchase the alcohol.  A cash bar can reduce consumption and can reduce the risk of a claim that the employer directly provided alcohol to employees.

Provide rides.  Employers should think about ways to get their employees home safely.  Arrange for designated drivers or work out an arrangement with a local hotel with a shuttle service or a car service to offer discounted rates to all employees.  Even if you don’t plan to or want to provide a taxi service, don’t think twice about calling and paying for one if an intoxicated employee plans to drive himself home.  From a cost-benefit point of view, the cab fare may be the best money your company has ever spent.

Instruct leaders of your company to set the example.  Leaders and executives of your company should set the tone for the holiday party.  It is important that they understand that they set the example of professional behavior at your holiday party.  Additionally, someone should monitor the party to stop problems and make sure nothing gets out of hand.

Communicate expectations ahead of time.  It is a good idea to send an office-wide memo a few days before the party to let employees know you look forward to a fun party and reminding them that it is still a work setting in which they are expected to exhibit decorum and professionalism.  This memo should also include the company’s policies on harassment and conduct as well as the dress code.

Invite the spouses.  Many employers choose to allow employees to bring their spouse or a guest to the holiday party.  A spouse or partner can act as someone’s “better half” and can help employees to make better decisions.

Do more than serve drinks.  Planned activities can keep guests from making constant trips to the bar and can keep a party from spinning out of control.  An activity, such as a white elephant gift exchange, can let employees interact in a way they normally wouldn’t interact with each other.

Excluding the mistletoe, decorations are okay.  Holiday decorations can create a festive atmosphere at your party, but forget about hanging mistletoe.  This could lead to all sorts of harassment issues and potential complaints.

Consider an alternative.  Some employers may altogether want to reduce risks associated with evening events by throwing a casual day party or by doing something more low-key such as volunteering together for a charity or holding a family-friendly affair at a bowling alley.  These kinds of activities still allow employees to get into the holiday spirit without having to endure the higher-risk party atmosphere.



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Exploring Absenteeism in the Workplace: How to Manage Employee PTO Abuse

Do you find that around the holidays and during the summer your employees are missing-in-action on a more frequent basis?  If you answered yes, you are in the majority of employers.

Unscheduled absenteeism rates have risen to unprecedented levels since 1999.  Excess employee tardiness, unscheduled absenteeism, and paid time off (PTO) create a costly problem for employers.  Overall, unscheduled absenteeism roughly costs employers $2,650 per year for salaried employees and $3,600 per year for each hourly worker.  Further, these costs do not include the indirect costs associated with unscheduled absenteeism such as lost sales, overtime pay for other employees, hiring temps, missed deadlines, lower productivity and sinking morale.

Employers should understand that absences and tardiness come in many forms.  For example, employee absences may be due to physical or mental illness, substance abuse, family emergencies, childcare or eldercare problems, medical leaves that occur suddenly, government or civic-duty related leaves (i.e., jury duty), they are disengaged from their work due to stress, or burnt-out.  Additionally, employees may just be irresponsible and prefer taking time off.

In some cases, missing work or tardiness cannot be prevented and is understandable.  However, the costs arising from unscheduled absences can be better managed with a clear policy on how to schedule and report an absence to supervisors.  Unfortunately, many employees either do not understand the PTO policies in place or simply ignore them all together.  When absenteeism becomes intentional or habitual, employers are faced with a real problem that must be stopped in its tracks.

Fortunately, we have provided below a variety of ways employers can reduce excessive absenteeism and PTO abuse.

Employers should first draft a clearly written PTO policy that all employees have access to.  Not only should employers provide employees with a copy of the policy (by including the policy in the employee handbook), but it is a good idea to place the policy in a central employee area where it can be read often and serve as a reminder that your company does not tolerate PTO abuse.  Employers can encourage employees to schedule their time off by providing time off request forms in the same area where the policy is posted.

Here are some things employers should think about when drafting your PTO policy:

  • Ensure your PTO policy is consistent with all other policies in place and all payroll department procedures.
  • A PTO policy should also include a procedure for letting employees know where they stand with their leave banks.
  • Since PTO is typically considered a part of compensation, think through all compensation issues. If an employee does not use all of his PTO, are the unused days to be paid out?
  • Apply your PTO policy consistently. Often, supervisors don’t ask for a doctor’s note from some favored employees when they were absent, but will ask for a note from other unfavored employees.
  • Decide whether sick time will be included as PTO or if sick time should just be sick time. Typically, sick time is not paid out if it is not used, whereas PTO time generally is paid out if not used.
  • Require employees to personally call in, if possible, on each day they are absent from work. Don’t permit employees to leave a message before anyone is in the office.  At a minimum, require the employee to leave a number of where they can be reached for a follow-up call.
  • Decide if PTO days should rollover into the next year if unused. Some employers believe employees should take all of their vacation.
  • Include the consequences that may arise from repeated PTO abuse and misuse. Since it is virtually impossible to list every single potential offense, keep the policy flexible.

However, drafting an effective PTO policy alone is not going to reduce employee abuse of PTO and excessive absenteeism.  Communication is the key to making your PTO program work.

In most companies, immediate supervisors are primarily responsible for managing absenteeism and are often the only people aware when certain employees are absent.  Managers and supervisors are in the best position to notice a problem of PTO abuse at an early stage and to understand the circumstances surrounding an employee’s absence.  Therefore, it is pivotal that managers and supervisors are actively involved your company’s absence procedures.  This requires employers to train supervisors on your PTO policy and how to handle situations where employees request leave.

Some critical actions supervisors should take to manage absenteeism include the following:

  • Ensure all employees are fully aware of your company’s PTO policies and procedures to handle an absence.
  • Be the first point of contact when their reporting employee calls in sick.
  • Maintain accurate, up-to-date and appropriately detailed absence records for their reporting employees that include the reason for the absence, the date expected to return to work, and a doctor’s note if necessary.
  • Identify any trends or patters of absences of reporting employees that cause supervisors concern.
  • Implement disciplinary procedures when required.

Overall, the costs and side effects of unplanned absences and PTO can be controlled if your company makes it a priority to implement a clearly written PTO policy, provides training to supervisors regarding your PTO policy, accurately document incidents and stop abuse of the system.  Not only will dealing with employee PTO abuse reduce unwarranted costs to your business, but it will make the workplace a more productive environment.



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How To Avoid The Top 10 FLMA Mistakes Employers Make

Navigating the maze of legal requirements applicable to employee leave under the Family Medical Leave Act (FMLA) can be a daunting task for employers.  To make matters worse, the law is full of traps that can easily ambush employers that let their guard down.  So to help employers avoid costly missteps, we decided to look at the top 10 FMLA mistakes and provide suggestions on how to avoid them.

  1. Employer obligations under FMLA. The FMLA imposes many technical obligations on employers that may result in liability if not met.  Many of these employer obligations can be easily met.  For example, employers are obligated to post at every worksite the latest FLMA posters.  Employers are also obligated to advise, in writing, whether an employee’s FMLA leave request was approved or denied and must include all required designation notices within required timeframes.  Employers must also track all FMLA usage and inform employees of their amount of leave remaining.  Most importantly, employers are not permitted to retaliate against or interfere with an employee’s right to take FMLA leave.
  2. Drafting an FMLA policy. Employers are required to draft an FMLA policy and should distribute this policy via the employee handbook.  The policy should include terms that are most advantageous to the company.  For example, if not specified by the employer, employees may chose to use the 12-month period in which the 12 weeks of FMLA may be taken.  Most likely, employees would choose the 12-month calendar period, which allows employees to take 24 weeks of FMLA leave by stacking leave during the last 12 weeks of one year and the first 12 weeks of the new year.  Rather than letting employees choose the 12-month period, employers can dictate in their FMLA policy a rolling 12-month period (rolling forward or backwards from the time any leave commences).
  3. Calculating FMLA eligibility. Many employers fail to include all time worked when determining whether an employees is eligible for FMLA.  It is important to remember that the employee’s actual workweek is the basis from which employers must calculate FMLA leave entitlement.  This means employers need to take into account overtime hours and break time into an employee’s FMLA eligibility calculations.
  4. Untrained supervisors and managers. Since managers and supervisors are an employer’s front-line of defense, it is important that they are trained on the FMLA.  If a manager fails to notify HR when an employee is out on leave for an extended period, it could delay the start of the 12-week FMLA period.  An untrained manager’s mistake can cause issues with employee staffing and productivity.  Other problems can arise from having untrained managers and supervisors.  For instance, a supervisor who dissuades employees from taking leave or requests prohibited medical information from an employee requesting leave violates the FMLA and can cause employers to face costly repercussions.  Just because managers and supervisors do not administer FMLA leave does not mean they should not be trained on FMLA.
  5. Not recognizing requests for leave. Employers should not assume an employee must specifically ask for FMLA leave.  There are no magic words required for an FMLA request.  If you feel you need more information to determine if an employee might need FMLA leave, then ask the employee.  A general report of a serious condition may be sufficient to trigger FMLA obligations.  For example, an employee who has a history of migraines and who noted they took sick days for headaches can signal an FMLA-qualifying condition.  Employers should also note that the required 30 days’ notice an employee must give to take FMLA leave depends on whether the need for leave is foreseeable.  If the reason for leave is unforeseeable, an employee must only provide sufficient information for an employer to reasonably determine if FMLA may apply.  When employers determine whether notice was given in a timely manner, employers should be flexible where the circumstances call for it and must remember to take into account whether the need for leave was foreseeable.
  6. Issues with certifications from health care providers. Under the FMLA, employees have 15 calendar days after submitting a leave request to provide certification from their health care provider.  When employers request certifications to document an employee’s leave, they should advise employees of the consequences of failing to provide an adequate certification.  An adequate certification must state: (1) the date the condition began, (2) probable duration, (3) medical facts, (4) that the employee is unable to perform her work, (5) the dates and duration of treatment, and (6) the expected duration of leave.  Employers will sometimes accept certifications of a serious health condition that does not state the frequency and/or duration of the intermittent leave that is needed.  If the certification is incomplete or insufficient, the employer must notify the employee and provide the employee time to cure any deficiency before denying the leave.
  7. Missed notices. When employees seek FMLA leave, employers are required to provide several notices to employees.  By failing to provide any one of the notices, employers violate the FMLA.  First, employers must provide a general notice of employee FMLA rights.  Second, employers must provide notice of eligibility within five days of the leave request.  Third, at the same time as the notice of eligibility is given, employers must supply a notice of employee rights and responsibilities under FMLA.  Fourth, employers must provide the requesting employee with a designation notice determining whether leave qualifies as FMLA leave.
  8. Expecting employees to work in lieu of or while on FMLA leave. Employers should not make the mistake of offering light-duty work to employees while counting that as FMLA leave.  For instance, if an employee cannot perform their work due to an injury an employer may offer light-duty work.  If an employee wants to take FMLA leave, employers should not even suggest an employee work (even just a little) while on FMLA leave or in lieu of full-time leave.  Further, employers should not insist on meeting time-sensitive goals despite the fact that an employee took FMLA leave.
  9. Underestimating Employee Abuse of FMLA. There are many ways employees can abuse leave under the FMLA.  Since many employers complain about unpredictable, intermittent FMLA leave, employers should develop a surveillance plan to reduce the risk of FMLA abuse.  This requires employers to ensure they receive adequate medical certification from the requesting employee, to seek clarification and verification of the employee’s condition, and to ask for periodic re-certification and information on any changed circumstances or when the reason for leave drastically differs from the original certification.
  10. Not taking into account the ADA. Many employers fail to realize that the Americans with Disabilities Act (ADA) may require leave beyond the leave required by the FMLA.  An employee’s serious health condition that requires 12 weeks of leave under the FMLA will also likely satisfy a disability under the ADA.  Hence, employers must remember that additional leave may be required under the ADA as a reasonable accommodation even when the employee has already exhausted all leave she is entitled to under the FMLA.


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NYS Sexual Harassment Legislation

The effective date of the NYS Sexual Harassment Legislation was October 9, 2018. Please remember, the development and distribution of a written anti-harassment policy (contact PMP for a sample policy), the posting of a notice, and the creation and distribution of a complaint form (contact PMP for a sample complaint form), should be complied with immediately.

In addition, the final regulations require that new employees be trained “as quickly as possible”.

However, New York State employers have been given a modest reprieve regarding compliance with the training requirements of the State’s new Anti-Harassment law. Previously, the deadline for providing each employee their first annual training session was to be January 1, 2019.

Now, with the release of the Department of Labor’s final guidelines, that deadline has been moved back to October 9, 2019.

Additional information can also be obtained online at https://www.ny.gov/programs/combating-sexual-harassment-workplace

Learn more about PMP’s in-house and e-learning training options



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Why Employer Retaliation Poses Serious Risks In Today’s Workplaces

In the wake of the #MeToo movement, you might be under the impression that sexual harassment claims are the primary area of concern for the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal employee protection laws.  However, of the 84,000-plus charges filed with the EEOC in 2017, almost half of those charges included charges of employer retaliation.

Compared to claims for sexual harassment or other discrimination claims, the legal threshold to prove a retaliatory act is very low.  More importantly, it is difficult to defend a retaliation case in front of a jury.  It is more likely that jurors will find that a company took some sort of retaliatory action against an employee for reporting sexual harassment or complaining about perceived discrimination.  Jurors may be more hesitant to hold an employer liable in a discrimination case since they’d be required to find a company or manager was “sexist” or “racist.”

Understanding how retaliation is defined and knowing what constitutes retaliation can help employers develop a strategy to minimize the risk of being subject to such claims.

Retaliation is generally defined as when an employee engages in protected activity and, as a result, suffers a material job detriment.  Protected activity includes situations when an employee reports a discrimination issue to management or other authority (i.e. making an internal complaint, filing a charge with a government agency, or acting as a witness in an investigation). It should be noted that protected activities are not just limited to sexual harassment.  There are many laws and acts, such as the Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Civil Rights Act of 1964 (Title VII), etc., which specifically bar retaliation.

The EEOC states that it is unlawful to retaliate against employees or job applicants who, among other things:

  • File charges or are witnesses in an EEOC investigation, complaint, or lawsuit;
  • Refuse to comply with directions from a supervisor which would otherwise result in discrimination;
  • Request a religious or disability accommodation;
  • Answer questions during an employer investigation regarding alleged harassment;
  • Ask co-workers or managers about wage or salary information to uncover potentially discriminatory wages; and
  • Intervene to protect others from sexual advances or resisting sexual advances

Employers must note that this is not an exhaustive list of retaliatory acts.  In 2016, the EEOC broadened the definition of retaliation to include behaviors considered to be “pre-retaliatory” or acts that try to discourage or stop employees from raising issues or filing complaints in the first place.

The following are some examples of retaliatory behaviors:

  • Firing the employee;
  • Reducing the number of hours the employee is scheduled to work or changing the employee’s work schedule to times that conflict with personal obligations;
  • Refusing to promote the employee or give the employee a raise;
  • Demoting or transferring the employee to a less desirable position;
  • Creating a hostile or uncomfortable work environment;
  • Giving the employee a bad performance review when not merited or evaluating the employee more severely than others; and
  • Excluding the employee from meetings or other company-related activities.

It is relatively easy for an employee to assert a retaliation claim.  The employee who has been wronged must only show a connection between their engagement of a legally protected activity and a negative or adverse action they experienced as a result of their legally protected activity. They need not show that any discrimination occurred.

So how can employers minimize their exposure to retaliation claims?

Include an anti-retaliation policy in your employee handbook that specifically prohibits any employee from taking retaliatory actions against another employee.  The policy should also include a specific process employees may utilize to report acts of retaliation and should encourage employees to come forward with concerns.

Providing training to all supervisors, managers, and human resources representatives to ensure they understand what actions constitute retaliation in the workplace.  Ensure that they are prepared to respond in an appropriate manner if an employee engages in protected activity (i.e., an employee files a complaint or participates in an investigation).  Be sure to document all training conducted with management and employees to serve as proof that you have taken practical steps to prevent retaliation in the workplace.  Further, it is important to make sure that all employment decisions are made based upon legitimate, non-discriminatory reasons.

Another effective way to minimize exposure to retaliation claims is to create a hotline that permits employees to submit complaints anonymously.  An anonymous hotline will allow employees to bring issues to their employer’s attention and employers can quickly take steps to solve those problems with minimal disruption and full anonymity.  This solution can also eliminate a manager or supervisor’s chance to retaliate against an employee since they won’t know who submitted the complaint.



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Fostering A Culture Of Employee Recognition In The Workplace

Employee recognition is a vital factor required for a company to maintain high levels of efficiency and productivity.  More often than not, employee recognition is cited as a critical contributor to workforce happiness, employee loyalty, and long-term satisfaction.  Studies show that nearly 65 percent of employees do not feel they are recognized by their supervisors.  Further, 87 percent of recognition programs that are based on length of service have no impact on performance.  Employers must understand that when employees’ hard work goes unnoticed and unrecognized, it can have serious implications on a company’s culture and success.

The concept of employee recognition is far more than just a trendy buzzword.  There are many benefits associated with creating a culture of employee recognition.  First, there will be greater employee retention when employees feel valued and appreciated.  Second, employees who feel valued and recognized are more likely to have a better relationship with their managers.  Third, recognition programs foster a deeper connection with the company by allowing employees to view their jobs as more than just a thing to do to receive a paycheck; they see their contributions really matter and their hard work makes a difference.  Lastly, when employees are recognized for their hard work, they will show more enthusiasm and take more initiative in the future, resulting in greater productivity and efficiency for your company.

We have put together some helpful tips you can use to create a meaningful recognition culture in your organization.

  1. Timing is everything. When recognition is given months after the fact it loses its meaning and lacks authenticity.  A simple “thank you” is more effective than you think when you see an employee going above and beyond to finish a project.  You might think it is unnecessary since employees know what they are doing is good, but positive re-enforcement has never hurt anyone.  Most importantly, a “thank you” from the boss costs absolutely nothing and makes a world of difference in motivating employees.
  2. Recognize the right attitude and behaviors and not just good outcomes. For example, a manager may recognize an employee who achieves or surpasses their sales target or lands a new client.  In addition to recognizing employees for meeting their goals, let employees know that you appreciate the initiative they took to learn how to sell a new product or their persistence and determination to land the new client.  In most situations, the right behaviors and outlook are leading indicators of positive business outcomes.  Show your appreciation for not only the outcome, but for the overall process taken to reach the desired goal.  This type of recognition provides employees with greater motivation to take on more difficult tasks and achieve greater success.
  3. Recognition must be personal and specific. Recognition is only effective when it is authentic, heartfelt, personal and specific to the employee’s positive behavior and achieved result.  Although it is easy to send a generic “thank you” email, it is a wasted effort.  Instead, try a handwritten thank you card or have a five minute face to face conversation with the employee expressing your appreciation for their hard work that is tied to a specific accomplishment or business objective.  Try dividing recognition into categories such as leadership, teaching, sales and performance.  Being specific allows employees to relate the received recognition to their behavior and encourages continued strong performance in the future.
  4. Don’t let recognition only come from the top down. It’s not realistic to expect managers to catch every single thing that every employee does.  Sure, the only way to start a culture of recognition is for recognition to start at the top and trickle down.  But you can create a more effective and far reaching culture of recognition by encouraging everyone to participate in recognizing each other’s efforts.  Let your employees know that they should recognize their colleagues and even their supervisors when they did a good job on a presentation.  Set a designated time at staff meetings where employees can recognize each other publicly.  Peer recognition creates a sense of friendship, team spirit, and a sense of belonging among fellow employees.  It is been found that close work friendships are likely to boost employee satisfaction by 50% and people who have close friends at work are 7 times more likely to fully engage in their work.
  5. Foster collaboration through peer-to-peer learning and give employees more responsibility. Nearly 70% of employees credit their peers for creating an engaging work environment.  Allowing employees to participate in peer-to-peer learning lets employees recognize each other as “experts” on certain subjects and approach each other to seek help, ask questions, and learn more.  Peer-to-peer learning enables employees to interact and collaborate with coworkers across different teams and departments.  The added responsibility of being an “expert” empowers your employees and builds your team members’ confidence when employers recognize and trust their expertise.
  6. Make recognition fun! Many employers are using mobile technology to recognize and reward employees.  Mobile apps allow managers and employees to instantly provide recognition and appreciation for good actions taken.  Companies can create a game-like, employee-centric experience on a company-wide platform where employees receive immediate recognition.  Since recognition is most powerful and effective when it’s instantaneous, employees will perceive a strong link between the recognition received and their actions, which likely means they will be more motivated to repeat those good behaviors in the future.


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Stay Ahead Of The Game: 10 Updates To Your Employee Handbook For 2019

Have you recently updated your employee handbook?  If not, it’s certainly something employers must do before 2019 rolls around.  Handbooks require regular review, especially considering the ongoing changes in federal, state and municipal laws.  An outdated employee handbook can leave your business exposed to financial risk if you become the subject of a lawsuit brought by an employee.

 

Here are the 10 topics in your employee handbook you may need to update for 2019:

  1. Sexual Harassment: Both New York State and New York City have enacted anti-sexual harassment legislation.  Employers must include policies regarding the prohibition of sexual harassment in the workplace and policies explaining how employees can submit complaints of sexual harassment.  Remember, writing a policy requiring employees to report incidents to their manager isn’t helpful if the manager is the one doing the harassing – there should be multiple people complaints can be reported to.
  2. Technology and Social Media: As social networking increasingly becomes routine in our lives, employers should implement policies to educate employees on the company’s expectations and limitations on usage.  Problems ranging from workplace distractions and decreased productivity to invasion of privacy, disclosure of confidential information, and harassment may all stem from employees’ use of social media in the workplace.  Click to read more about why your company needs a comprehensive technology policy.
  3. New York State Paid Family Leave: As of January 1, 2018, private employers in New York must have Paid Family Leave insurance.  Employees may take paid leave to bond with a newborn, adopt or foster a child, care for a family member with a serious health condition, or assist loved ones when a family member is deployed abroad on active military service.  Employees must receive written guidance concerning their Paid Family Leave benefits, so employers should include a policy in their handbooks explaining the process to request Paid Family Leave and the benefits provided to employees.
  4. Military Leave Absence Under FMLA: Employers with 50 or more employees are subject to the Family Medical Leave Act (FMLA).  Employers are required to adopt a written policy detailing employees’ rights under FMLA.  In addition to FMLA leave for a serious health condition, eligible employees with covered family members serving in the military may take military caregiver leave or qualifying exigency leave under the FMLA.  Military caregiver leave provides eligible employees with the right to take up to 26 weeks of unpaid leave during a single 12-month period to care for a covered service member with a serious illness or injury incurred or aggravated in the line of duty.  Military exigency leave allows eligible employees whose spouse, parent, son or daughter is called to serve active duty, to take 12 weeks of unpaid leave related to the call-up of their family member.
  5. Genetic Information: Genetic information should be added to your list of protected classes.  The Genetic Information Nondiscrimination Act (GINA) went into effect on January 1, 2009, yet, it is still relatively unknown to many employers.  GINA protects employees from discrimination based on their genetic information, including information about an employee’s family members.  Genetic information includes information regarding an employee’s family history and the results of genetic tests.  Employers with 15 or more employees are subject to GINA.  Violations of GINA have resulted in liability exceeding $50,000.  Employers must be aware that laws and regulations continue to expand protections to new categories of individuals – companies must stay up to date on these laws and have their written policies reflect the changes.
  6. E-cigarettes: As e-cigarettes have become increasingly popular, employers should update any no smoking policies or policies that restrict where employees may smoke to include e-cigarettes and vaping.
  7. Active Shooter Plan: Employers should create policies that set forth the protocol employees are to follow should they encounter an active shooter in the workplace.  Developing an emergency plan and practicing drills with employees can be the difference between life and death for your employees.  Click to read more about active shooter plans.
  8. FMLA and ADA: If your business is too small to be subject to FMLA or if you have employees who have used up their leave under the FMLA, employers must be aware that the Americans with Disabilities Act (ADA) (or similar state or local law) may require the company to reasonably accommodate employees’ disabilities.
  9. Maternity/Paternity Leave: Check your handbooks to make sure that rules for baby-bonding are the same for mothers and fathers.  While it is permissible for employers to include different standards for mothers regarding the physical limitations arising from being pregnant, all policies regarding parental leave should use gender-less terms such as “primary caretaker.”  Employers may also want to distinguish between medical leave (i.e., for recovering from childbirth) and parental leave (i.e., for bonding with the new infant).  It is discriminatory to give new fathers less parental leave time than new mothers.
  10. Multiple Locations: It is not a good idea to have a single handbook with blanket policies for workers in different jurisdictions.  Employers may be subject to different laws and rules for employees working in different states or in different counties or cities in the same state.  If you have multiple office locations or employ remote workers in different states, be sure to add state or local supplements to the handbook that is distributed to employees working within those locales.


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5 Foolproof Solutions to Managing Remote, Non-Exempt Employees

For good reason many employers have concerns with non-exempt employees performing remote work.  Accurately tracking employees’ time worked presents problems when employees work outside of the office.  Typically, telecommuting or working remotely has been reserved for exempt workers since those workers are not entitled to overtime pay and employers need not worry about the number of hours worked by the exempt employee.  But the reality is that the use of technology in the workplace, whether company-issued or personal, has led to the increased accessibility employees have to their work, especially when off site or after hours.

Importantly, work not specifically requested by an employer, yet still performed, is still compensable, and companies must be proactive in ensuring employees receive all pay due to them.  Employers must pay non-exempt employees when they respond to emails, answer or send text messages, or make or answer phone calls outside of their regular work hours.  Tracking such time presents many difficulties.  Below, we have set forth some tips….

 

  1. Find out if your current time tracking system can be accessed remotely. Employers must remember that the law requires employers to maintain contemporaneous and accurate records of non-exempt employees’ time worked each day.  Many timekeeping systems can be accessed remotely by employees performing work outside of the office.  In the absence of accurate time records, courts will employ a rebuttable presumption that the hours claimed by the employee are correct.  Thus, employers must provide remote workers with the ability to access time tracking software so they can contemporaneously record their time.
  2. Employers must clearly explain what constitutes “hours worked” to non-exempt employees as well as to their supervisors. Non-exempt workers’ hours worked are usually determined based upon the time an employee starts their “principal activity” and the time on that day at which they cease the “principal activity.”  Employees must understand the expectations employers have if employees are to track their own compensable time.  Usually, meal breaks of 30 minutes or more where employees are not performing any work can be unpaid, while rest breaks of 20 minutes or less should paid for as working time.
  3. Develop or update your timekeeping policy. Most employers share the concern that permitting non-exempt workers to work remotely will allow those employees to work too many hours at home and result in high overtime costs.  Employers should institute a policy prohibiting off the clock work.  If work performed remotely will result in a non-exempt employee to exceed the 40 hour mark in a workweek, employers can require non-exempt employees to receive advanced written approval that they may work overtime.  In addition, this policy should explicitly state that under-reporting hours worked, or over-reporting hours worked is strictly prohibited.  Employers should have all employees execute an acknowledgment that they have been made aware of and understand the time-recording policies.  If any non-exempt employee fails to obtain the written approval to work overtime hours, employers are still legally bound to pay the overtime but may take remedial action due to the employee’s failure to comply with the policy.
  4. Managers must be instructed and understand that they are not permitted to direct non-exempt employees to perform work off the clock. When overtime is not permitted managers must tell employees that “no one is allowed work any extra hours.”  It should be noted that the previous statement is very different from telling employees that “the business cannot afford to pay for overtime,” since employees are likely to interpret that they should still work the extra hours but not record their time.  Similarly, if a manager works longer or different hours than the employees who report to them, the manager should try to schedule sending emails during the employee’s normal hours.  If that is not practical, managers should include in the email’s subject line that the employee should not respond to the email until they return to work.  Supervisors must also be trained to report any potential off the clock work by non-exempt employees to enable HR or upper level management to speak with the employee to determine if they are owed pay for hours worked.
  5. Set boundaries for any kind of remote work non-exempt employees may perform. This should include establishing well-defined rules about when and if a non-exempt employee is permitted to work remotely. For instance, employers can set times when workers may use company-issued phones or may log into their computer remotely.  However, it may not be practical for all employers to set specific times for remote work.  Nonetheless, employers should make certain that all non-exempt employees understand the boundaries for when they are permitted to work remotely and how time is to be recorded to ensure wages are properly paid.


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Comprehensive Technology Policy: A Workplace Must-Have!

Considering how common smartphones have become in our daily lives, it’s likely that most, if not all, of your employees bring a smartphone to work.  As helpful as our handheld devices are (since we use them for everything), they can be distracting, and at times, can lead to bad publicity or security risks for a company.  It should not be surprising to employers that the presence of smartphones in the office introduces a new set of concerns that must be addressed.  Some of these concerns include ongoing distractions for employees, a decrease in employee productivity, and potential problems resulting from an employee’s unmanaged social media.  Studies have estimated that Americans spend over 5 ½ hours per day on social media.  How much of that time is spent in the office?  Whether your business has a smartphone policy that was drafted 5 years ago or your company simply does not have a policy addressing cell phone use or social media, it is critical to adopt a wide-ranging technology policy to effectively protect your company.

A comprehensive technology policy should include policies regarding use of smartphones and devices in the workplace and a social media policy for each employee’s personal social media channels.

Your cell phone/smartphone/smart device policy should be drafted broadly to include all devices employees may bring into the office and should include the following topics:

  • Smartphone etiquette: There is nothing wrong with telling your employees how you would like them to use their cell phones during work hours. However, a policy banning cell-phone use would be unreasonable and it is not likely employees would comply with the policy.  Instead, aim to curb cell phone use by asking employees to use their common sense by taking personal calls or texting when only necessary, limiting the calls to brief sessions and speaking quietly when making or receiving personal calls.  Employees should also be cognizant of cell phone use during meetings so as not to be preoccupied or distracting to others because they are texting or checking emails during the meeting.
  • Accident prevention: If part of an employee’s job entails driving a company-owned vehicle, not only should talking on a cell phone be prohibited (hands-free exceptions may be made), but text-messaging and any use of other functions of the device should be banned.  If a call must be made, the driver should pull over to a safe place to make the call.  Employers may also modify the voicemail greeting or have an automatic reply text sent to indicate the employee is unavailable to answer calls or return messages while driving.
  • Company-issued devices: If your company provides your employees with company-issued phones or other devices, employees must be made aware that any communications sent on the device are company-owned property.  Employees should have no expectations of privacy with respect to such communications.  The policy should include a statement that the company-issued device is subject to review by the employer and that the employer owns the telephone number associated with the device.
  • Anti-harassment policies still apply to smartphones and devices. Employers should be aware that inappropriate use of smartphones in the workplace can lead to potential sexual harassment claims and litigation. Employers should emphasize that any use of a smartphone (i.e., sending inappropriate text messages to coworkers, etc.) is subject to the company’s anti-harassment policies, including the sexual harassment policy.
  • Camera usage: Most smartphones and smart devices are equipped with the ability to take pictures and videos.  Employers may want to ban the use of all cameras on phones and devices during the workday to protect the privacy of the employer as well as fellow employees.  Employees should be made aware that any proprietary information is property of the company and employees are prohibited from taking pictures or recording video of proprietary information.  Depending on the business, this may include, but is not limited to, photos or video of any prototypes, notes from development meetings, upcoming product releases, customer receipts, etc.  In addition, if a business has trade secrets or patents, employers should implement an absolute ban on any camera use in the workplace.

A strong social media policy should clearly outline what your company believes to be acceptable conduct online, even off-hours, in order to protect your company and your employee’s rights.  Your social media policy should address the following topics:

  • Workplace conflicts should stay offline: Be sure to outline the procedures employees may use to air grievances before they choose to post about a situation on online.  However, employers may only request and cannot require employees to use the appropriate channels to resolve workplace grievances.  Many employers do not realize that a social media policy may violate the National Labor Relations Act (NLRA) if it precludes employees from engaging in protected concerted activities.  Employees also have a protected right to seek help from third parties on social media to improve their terms and conditions of employment.  A social media policy should not discourage employees from discussing conditions and terms of employment or from sharing information about themselves or other employees with outside parties.
  • Content restrictions: Your social media policy should specifically restrict employees from posting or sharing confidential or proprietary information on social media.  In addition, any use of brand trademarks or company logos by employees should be used only in an approved manner.
  • Consequences for unprofessional behavior online: Legally, employees may post whatever they choose on their personal social media channels (so long as they do not break any of the channel’s terms and conditions).  Employers may prohibit defamation and of course, employers may also discipline employees for online behavior during the workday when the employee is supposed to be working.  To note, employers must consistently enforce this policy with respect to all employees.


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