Performance Management

Typically, a drug test cannot be certified as positive until a Medical Review Officer (“MRO”) verifies the result.  For drivers subject to the Federal Motor Carrier Safety Act, Department of Transportation Regulations state that an MRO must verify as positive a confirmed test result for drugs, unless the employee presents a legitimate medical explanation for the presence of the drug in his/her system.  The employee bears the burden of establishing the legitimate medical reason for the positive test.

With the passage of state laws legalizing the use of medical marijuana, including here in Pennsylvania, many have questioned whether the use of medical marijuana, pursuant to state law, constitutes a legitimate medical reason for a positive drug test. In an updated “Medical Marijuana Notice” issued this fall, the Department of Transportation answered the question.  The DOT said “No.”

The DOT’s Notice makes it clear that marijuana, in all forms, remains illegal under federal law and the DOT expects that MROs will treat marijuana, whether used recreationally or medicinally, as illegal.  Accordingly, the Notice provides that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana’ . . . It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

The implications of medical marijuana use for CDL drivers is now clear.

But, what about drug tests for employees not regulated by the DOT?

The reality is that most MROs follow DOT testing guidelines for all drug tests in an effort to ensure consistency.  Accordingly, even when a non-DOT regulated employee tells the MRO that he/she is certified to use medicinal marijuana, the MRO will nonetheless certify the test as positive.  The MRO may include an external note to the employer that the employee claimed medicinal use.  However, the MRO will not seek to confirm the employee’s claim or to otherwise determine if the employee is a certified user.

The take-away is this . . . drug testing facilities will not help employers decide how to handle medical marijuana use.  A positive drug test will be a positive drug test, regardless of whether the employee is certified to use medical marijuana.  Accordingly, at the end of the day, outside of the CDL context the burden remains on the employer to decide, in accordance with its policies, how, if at all, the employee’s medicinal use impacts employment status.

Should you have any questions about your company’s drug testing procedures or your drug testing policies as the Pennsylvania Medical Marijuana Act nears full implementation, do not hesitate to contact us.

This post was contributed by Erica Townes, a McNees Summer Associate. Ms. Townes is a rising third year law student at the Widener University Commonwealth Law School and is expected to earn her J.D. in May of 2017.

Recently you’ve noticed that an employee takes FMLA-covered leave the same week every year or always seems to have a medical emergency between Thanksgiving and January 1. Similarly, another employee regularly calls out of work requesting FMLA-covered, coincidentally on Fridays during football season. How can employers prevent this type of FMLA leave abuse? Several courts have addressed this issue.

Generally, employers are free to enforce company policies even with respect to employees on FMLA leave, provided that such policies are consistent with the FMLA.  Specifically, company policies cannot conflict with or diminish rights guaranteed under the FMLA.  Accordingly, the Third Circuit, the court of appeals that covers Pennsylvania, has routinely held that employers do not have to forego enforcement their call-in policies simply because an employee is FLMA eligible.

The Third Circuit has upheld an employer’s right to terminate employees for violating other policies while the employee was out on FMLA leave.  While employees may view these call-in policies as burdensome or intrusive, courts have expressly held that, despite the fact that employees have the right to take FMLA leave, employees do not have the right to be left alone when out on leave.

For example, one employer implemented a policy that required employees out on paid sick leave to stay home unless the employee was tending to a personal matter related to the reason they were on sick leave.  The employer further required employees to notify a hotline upon leaving and returning to their home, and if necessary, a sick leave investigator could call or visit the employee while he or she was out on leave.  In that case, the court held that the policy could be applied to an employee who was using FMLA-covered leave concurrently with paid sick leave, and that such application of the policy did not run afoul of the FMLA because nothing in the FMLA prevents employers from ensuring that employees are not abusing their leave.

In another case, an employee took FMLA and paid sick leave concurrently to have an operation done.  Only a few weeks after the operation, the employer learned that the employee had gone on a trip to Cancun, Mexico with friends, and as a result, the employee was terminated.  The employee brought a claim challenging her discharge under the FMLA.  Ultimately, the court held that the employee was bound by the employer’s sick leave and absenteeism policies, emphasizing that the FMLA, in no way, restricted the employer from preventing FMLA fraud.  As such, the discharge was upheld.

The Third Circuit has also held that an employer may enforce a written policy prohibiting moonlighting, or working part-time for a different employer, while the employee is out on FMLA leave.

The lesson learned from these cases is that employers have the right to safeguard against FMLA leave fraud and abuse.  To that end, employers may implement policies to reduce the fraudulent use of FMLA, so long as such policies do not abrogate rights guaranteed to the employee under the Act.

Practice Pointers

In addition to the policies mentioned above, consider the below practice pointers.

  • Consistency.  When handling FMLA leave, consistency is critical.  Providing an exception to the rule out of sympathy may hurt the employer in the long run as a disgruntled employee will use such exceptions against the employer in the future.  As the old adage goes, no good deed goes unpunished.
  • Records.  Maintain accurate records of FMLA leave so that (1) an employee’s FMLA eligibility can be accurately determined and (2) to identify suspicious patterns of absence.
  • Paid Leave.  Consider requiring employees to use paid leave concurrently with, or even before, FMLA leave. An employee will be less inclined to abuse FMLA leave if he or she has to exhaust their on time.
  • Abuse.  Immediately address employees who violate your policies.  Without doing so, employees may later argue that the employer excused the violation.
  • Seek Advice.  If you are still unsure whether you can enforce a particular policy, seek advice from legal counsel.

 

This post was contributed by Jennifer E. Will, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Law Group.

While you are busy with the required Hazard Classification Training that we told you about last week, you might want to make time to review any safety incentive programs that you have in place.

Last March, OSHA issued a controversial internal Memo on Employer Safety Incentive and Disincentive Policies. In a nutshell, OSHA’s Deputy Assistant Secretary gave Regional Administrators and Whistleblower Program Managers another target – employers who reward employees for safety!

OSHA’s Section 11(c) prohibits employers from retaliating against employees who report an injury or illness. Reporting an injury is protected activity under the statute and employers are required, by regulation, to establish a way for employees to report injuries.

Much of the Memo is devoted to employers who discipline employees for reporting injuries (which we are sure you do not do), but a portion of the Memo addresses employer programs that, intentionally or unintentionally, provide employees with an incentive not to report injuries. Some examples:

  • All employees who are injury-free will be entered into a prize drawing;
  • Team members will be awarded a bonus if the team stays injury-free.

Although the employer’s intentions may be pure, such programs and policies may encourage employees to not report their injuries.

Instead of rewarding employees for staying injury-free, the OSHA-recommended approach is to reward employees for their safe practices, such as:

  • identifying safety hazards;
  • joining a safety committee;
  • suggesting ways to strengthen existing safety policies; or
  • completing company-wide safety and health training.

Bottom line, if an incentive is big enough that the risk of not earning it would dissuade an employee from reporting an injury or illness, you may have a Section 11(c) violation according to OSHA. To the extent that injuries are not reported, you could also wind up with a record keeping violation.

This Memo is getting traction. The DOL recently entered into a formal settlement agreement with an employer over its safety program, which correlated employee incentive payments to OSHA recordables.

In short, OSHA would like employers to incentivize employees to: report injuries; participate in safety initiatives; and make improvements to safety and health in the workplace, without seeming to create an incentive to not report.

Please contact any of the McNees Labor & Employment attorneys for assistance with reviewing your safety incentive programs for compliance.
 

This post was contributed by Joseph S. Sileo, Esq. an attorney in McNees Wallace & Nurick LLC’s Labor and Employment Practice Group in Scranton, Pennsylvania.

The Occupational Safety and Health Administration (OSHA) has issued a new Hazard Communication Standard (HCS) that is designed to enhance employee health and safety by aligning the classification and labeling of chemicals in the United States with international standards (as established by the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS)). As explained in more detail below, the first phase of compliance requires employers to provide training to employees, by December 1, 2013, with respect to the new HCS label elements and Safety Data Sheet formats. The new HCS and related training requirement apply to all private sector employers, regardless of size or industry, with any hazardous chemicals in their workplaces.

The new HCS requirements address the following issues:

  • Hazard Classification- Under the new standard, chemical manufacturers and importers must follow a unified standard procedure, and use specific established criteria, for classifying health and physical hazards of chemicals.
  • Chemical Labels- The new standard requires more detailed labels, and specifically sets forth what information must be included for each identified hazard class and category. In addition, labels must convey the required information in an employee-friendly manner, by use of pictograms, signal words, hazard statements, and precautionary statements.
  • Safety Data Sheets- Under the new standard, the current Material Safety Data Sheet (MSDS) will be replaced by the new Safety Data Sheet (SDS), which must be issued and maintained in a specific 16-section format.
  • Information and Training- To ensure that employee understand the new label elements and SDS format, employers must train workers with respect to those issues.

The new HCS requirements will be phased in over a period of time, as follows:

  1. December 1, 2013- Employers must, by this date, train employees on the new label elements and SDS format.
  2. June 1, 2015- full compliance with the new HCS (including use of the new labels and SDS format) is required, except that chemical distributors have until December 1, 2015 before they must stop shipping containers with non-GHS labels.
  3. June 1, 2016- Employers must update workplace labeling and hazard communication programs as necessary, and provide employee training with respect to any new physical or health hazards identified by a hazard classification.

Between now and the June 1, 2015 full compliance deadline (the "transition period"), employers have the option to comply with either the new or old HCS, or both. As a practical matter, this means that an employer can continue to use the outgoing MSDS form, elect to use the new SDS form, or do both, during the transition period.

As an aside, some have questioned the wisdom of requiring employers to provide employee training as referenced above by December 1 of this year when actual use of the new labels and SDS format is not required until 2015. OSHA has explained its rationale by noting that providing such training now will benefit employees, and is necessary, because GHS-compliant labels and SDSs are already present to a certain extent in the U.S. workplace (due to voluntary use by some manufacturers), and such trend is expected to continue and increase during the transition period.

Our Labor & Employment Practice Group can assist you with preparing for and conducting the training required by the new HCS. Please feel free to contact any member of our Group for assistance and any questions you may have.

This post was contributed by Rick L. Etter, Esq., an Associate in McNees Wallace & Nurick LLC’s Labor and Employment Group.

Given the increase in major weather events that have impacted Pennsylvania recently, including high winds and substantial flooding, employers should consider the following issues that may arise when closings, delays, and absences are caused by inclement weather.

Must employees be paid when the business is closed because of inclement weather?

Nonexempt employees need not be paid for time when they do not work because the business is closed. Exempt employees must be paid their salary for the week regardless of the business closing. An employer may require exempt employees to use accrued paid time off.

Must employees be paid if they don’t report to work due to inclement weather when the business is open?

Nonexempt employees need not be paid for the time they are absent from work. Exempt employees need not be paid for a whole day absence taken due to inclement weather. An exempt employee absent for part of a day may be required to use accrued paid time off. However, if the exempt employee has no accrued paid time off, his or her salary may not be docked for a partial day absence.

May an employee be disciplined or discharged for failing to report to work due to weather conditions when the business is open?

An employer may generally apply its normal attendance policy to weather related absences. However, there is one major exception. Under Pennsylvania law, an employer may not discipline or discharge an employee who fails to report to work due to the closure of the roads in the county of the employer’s place of business or the county of the employee’s residency, if the road closure is the result of a state of emergency. The law does not apply to the following jobs: drivers of emergency vehicles, essential corrections personnel, police, emergency service personnel, hospital and nursing home staffs, pharmacists, essential health care professionals, public utility personnel, employees of radio or television stations engaged in the gathering and dissemination of news, road crews and oil and milk delivery personnel.

Recently, Michael L. Hund, Esq. and Salvatore J. Bauccio, Esq. from McNees Wallace & Nurick LLC’s Business Counseling Group developed a White Paper entitled: Equity Incentive Plans: Compensating Key Employees with Equity, Options and Equity Appreciation Awards (PDF). The White Paper provides an excellent summary of different methods that organizations can use to compensate and reward key employees. To view the White Paper click here.

Let’s take a moment to honor this cinematic legend while examining the dynamics of leadership that exist in all organizations whether it’s corporate America or in this case the Hole in the Wall Gang.

In this classic flick, Butch is an absentee leader with no succession plan. He is challenged by one of his subordinates for leadership of the gang.  Butch leads the gang through his dominant intellect and control over the gang’s star member –  the Sundance Kid a.k.a. Robert Redford. Here are some of Butch’s leadership shortcomings:

 

Assuming his Leadership won’t be Challenged

Butch is surprised when his leadership is challenged, but reminded by a gang member that “you always said that any one of us could challenge you Butch.”  Butch responds, “That’s cause I figured no one would do it."  The challenger responds, ”You figured wrong Butch.”

 

Losing Touch with his Team and then making Excuses 

There is support for the challenge when one gang member says “ Well at least [the leadership challenger] is with us… you have been spending a lot of time gone.” Butch makes his excuse in that “everything is different now… it’s harder now…you have to plan more….”

 

No Succession Plan

Butch has no succession plan creating a leadership vacuum where the rules are unclear. The ensuing battle is won only by Butch’s quick thinking and fancy footwork.  Ultimately, he must profess to the gang that there are no rules.

 

Retailating against those who Oppose him

Butch tells Sundance Kid that he doen’t mean to be a sore loser, but it the fight is done, and he’s dead, kill his successor.

 

Here is the full scene. Your comments on leadership are welcome.

 

https://youtube.com/watch?v=2y87EaadjqM%26hl%3Den%26fs%3D1

Transcript below:

Continue Reading Paul Newman: A Lesson in Leadership from Butch Cassidy

The prevalence of e-mail and texting communications can aid an employer in its investigation of workplace misconduct; provided, the employer’s policy adequately preserves its right to access the data. However, overstepping rights to access e-mail and other electronic communication media can result in criminal prosecution under state and federal law.

Recent high profile firings of Philadelphia TV anchors highlight the role of electronic evidence in an employer’s investigations and the pitfalls of illegal access to private computer data, in this case by an employee. Fired TV newscaster Larry Mendte was charged July 21, 2008 with hacking into the e-mail of his younger co-anchor. Mendte was previously fired based on an independent investigation by CBS as he allegedly hacked into Lane’s e-mail account from work and home and then revealed information to news outlets about Lane’s legal troubles. Lane was fired in January by CBS after she was accused of assaulting a New York City Police Officer and other public gaffes which gained media attention. Lane since sued KYW-TV, claiming that the station exploited her, tore her down and defamed her on her way out the door. She also claims that KYW management failed to investigate leaks of personal information about her and also engaged in a pattern of "deep-seated gender-discriminatory animus" toward her and other female employees.  Undoubtedly, CBS’s investigation into the circumstances of both firings will be the critical issues in subsequent lawsuits.

Federal and State laws protect employers and employees from unauthorized access to computers, servers and electronic data. There may be additional limitations on an employer’s access to employee e-mails and text messages sent from employer accounts when the messages are stored on third party provider’s servers and are not stored on employer’s internal network. In Quon v. Arch Wireless Operating Co. Inc., a federal appeals court in California held that a public employer cannot access the content of text messages and e-mails sent at work because the data was stored on a third party service provider’s server and the employees had a reasonable expectation of privacy in these accounts. An employer’s e-mail policy may eliminate the expectation of privacy as to e-mails stored on its servers.  However, the text messages held by “remote computing service” are protected under the Stored Communications Act and cannot be obtained by an employer without the employee’s consent.

Employers must carefully draft policies related to employee use and access to all electronic media so as to preserve its property interest in the data, ensure rights to unfettered access and prevent misuse of the media and information.

The Carnival of HR has its usual compliment of excellent postings on interesting topics.

Leading off is a discussion of the two sides of generational differences in the workforce. Dr. Ira Wolfe from the Perfect Labor Storm 2.0 posts on Gray ceiling disrupts succession plans for Gen Xers which discusses the recruiting challenges created by older workers remaining in the workforce and impeding the career advancement of younger employees. On the other side, Jon Agno of So Baby Boomer: Life Tips posts on Boomer Executive Challenges in which he fears that decades of institutional memory may be wiped out leaving organizations without many of the skills and insider knowledge businesses had taken for granted. 

Blogging is the subject of several of the Carnival submissions. Lisa Rosendahl at HR Thoughts asks the question “Why do you blog?” and answers it by stating that  “In doing so, you may very well be creating your legacy”. Her post is called "Moving Forward While Capturing the Past." Perhaps there is another answer to that question found in a post by Totally Consumed in which he comments On Personal Branding and Anonymous Blogging. The queen of anonymous blogging, The Evil HR Lady, chimes in recognizing that “I Haven’t Complained About Recruiters Lately.”

Legal risks sometimes cross the minds of HR pros.  Jon Ingham’s Strategic Capital Management (HCM) Blog assesses risk in his contribution Human Capital Risk and Reporting which argues that risk is an important area for all HR professionals. Dan Schwartz of the Connecticut Employment Law Blog kicks off our summer with some legal thoughts in his post called Start of the Summer Season: HR Topics to Ponder Now Before They AriseJon Hyman of the Ohio Employer’s Law Blog comes up with another compelling title for his post called Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract.  Most importantly, we should all keep in mind of Marcy McCullough’s post evaluating whether we can be dooced for On-Line Postings And Your Corporate Image: Can You Terminate Employees For Personal Postings?!?

Speaking of minds, Alvaro Fernandez at SharperBrains offers a superb introduction to what working memory is and why it is critical for our productivity, complemented with daily tips on Try Thinking and Learning Without Working Memory. Nina Simosko’s post describes "Comfortable Misery", a state of mind wherein you are miserable, but you have gotten used to it.  She states that far too many people live in "comfortable misery". A subsequent post offers a survey on the topic. If you are looking for a coping mechanism, the Career Encouragement Blog notes that it’s okay to acknowledge that sometimes you are irrelevant on a particular project or even in a whole job. That’s Job Search Rule # 30 for those who are counting. I wonder if comfortable misery is one of the “10 Things I Learned About Working in HR” as recounted by Dan McCarthy at Great Leadership when he makes observations about his 18 month develop assignment as an HR generalist.

Employee benefits and compensation are the subjects of several posts. Michael D. Haberman at HR Observations advocates helping employees at the gas pump as an employee benefit in his post Pumping Up Your Employees: No Rah-Rah, Just Help With Gas.   Ann Bares at Compensation Force posits that merit pay systems create a dilemma that occurs when the short-term interests of individuals are at odds with the long-term interests of the grouping her post  “The Tragedy of the Commons and Merit Pay”.  Wayne Turmel who is the host of The Cranky Middle Manager Show submits a post called Lousy Quality and Small Portions in which he confronts the paradoxes of middle managers. Greg Pernula at i4cp writes about a recent survey that found a majority of companies lack various support, training or education when it comes to workplace diversity matters.

There are lots of insights on Talent Management and Employee Empowerment. Wally Block’s Three Star Leadership Blog observes that The best and the brightest are not always the best fit because setting out to hire "the best and the brightest" without attention to ethics, work habits, or organizational fit is just asking for trouble and minimizing your chances for success. Steve Roesler at All Things Workplace writes in his post titled “Making Change? Pay Attention to High Achievers” that, when it comes to making change, the talented people you think will be most helpful just might be the least. Chris Young of Maximizing Possibilities thinks that Talent Management is an increasingly important strategic issue for most organizations.  Given the value placed on effective talent management practices the question must be asked: “Is talent management too important to be left to HR?”   Alice Snell’s at Taleo’s Talent Drives Performance Blog  has a post called “Strategic Is As Strategic Does” that explains how embedding talent management into the business process—facilitated by HR and owned by line managers and employees—puts strategy into action. Susan Heathfield at About.com Guide to Human Resources discusses Employee Empowerment as the goal of forward thinking HR processes and practices in her post Want Empowerment? You Get What You Request and Reward.

To add to our international flair, Frank Mulligan at Talent in China tries to explain the skills shortage for both professionals and workers in a land of 1.3 billion people, with the added contradiction of a shortage of jobs for Chinese graduates in his post "The Ups & Downs of China’s Labor Shortage".  Somewhere in Ireland, Rowan Manahan of Fortify Your Oasis conducted a radio interview on job equality somewhat irreverently titled and unlikely to pass prudish US internet filters.

All good stuff for us to consider as we address today’s challenges. Thanks for all those who contributed to this Carnival. Jon Ingham’s Strategic Capital Management (HCM) Blog will host the June 11th Carnival of HR.

The EEOC announced a $1 million settlement for sex discrimination against men arising from a restaurant’s preference for hiring and promoting only women into bartending positions. The lawsuit highlights the tension between a business’s marketing efforts and legal compliance. What marketers may pander to in the name of “customer preference,” employment laws prohibit as discrimination.

Businesses spend millions of dollars to find out what motivates customers to buy by evaluating their preferences. Demographics play an important role in tying the right product to the right market. Also critical is having the “right” salesperson to make the pitch.

A business’s natural, but unlawful reaction may be to make staffing decisions based upon appealing to a target demographic group.  The “customer preferences” for the right salesperson cannot create employer hiring or promotion criteria for someone of a particular gender, religion, age, etc. Courts have universally rejected this form of customer preference, except in the narrow case where it is a Bona Fide Occupational Qualification (BFOQ). A BFOQ may exist where it is necessary for the purpose of authenticity or genuineness, such as, a model for gender specific clothing. 

In its lawsuit, the EEOC said that Razzoo’s, a Cajun food restaurant chain, refused to hire or promote men to the position of bartender. The EEOC had evidence that the restaurant’s management set up and communicated to managers by e-mail, a plan for an 80-20 ratio of women to men behind the bar. Male applicants and servers were told that management wanted mostly “girls” behind the bar. Men who worked as servers at the restaurant were generally denied promotion to bartender because of their gender. The few men who were promoted to bartender were not allowed to work lucrative “girls-only” bar­tend­ing events.

The EEOC’s settlement with Razzoo shows a developing trend in the agency of making an employer improve its approach to human resources. In addition to paying $775,000 to be divided among a class of male applicants, male servers, and male bartenders who were discriminated against, Razzoo’s was also required to retain the services of a human resources consultant or to develop an in-house human resources department spending no less than $225,000 for these human resources services.   Razzoo’s agreed to injunctive relief requiring training on equal employment opportunity for all its employees, the posting of an anti-discrimination notice, and EEOC monitoring of employee complaints of discrimination.

Suzanne M. Anderson, EEOC supervisory trial attorney and lead counsel on the lawsuit, summed up the EEOC’s position by saying that, "Some may think that sex sells drinks, but gender ratios are illegal… Razzoo’s decision to hire and promote by gender is a clear violation of federal law. A hiring ratio is illegal whether it is 80-20 whites to blacks or 80-20 women to men."   It will be interesting to see how far the law will go in policing an employer’s efforts to appease a customer preference. For example, would an OBGYN practice be subject to an EEOC lawsuit if it specifically hired a female doctor based on the preference of its patients?