Fridays with Frank – Nov 1, 2019

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clockHappy friday!

Typing super fast…on a leftover Halloween candy-induced sugar high! Here’s some interesting stuff I read this week…enjoy!

Minnie Mouse is not happy  The company behind the self-described “happiest place on earth,” The Walt Disney Company, is accused of refusing to pay its women employees equal to men doing the same work.” According to a class-action suit recently filed against Disney, “in many instances, Disney is paying women workers tens of thousands of dollars less than their male counterparts.” With an increasing number of women joining the action, Disney is fighting the suit’s class-action status, effectively saying, you can sue us, but like a trip to the deli, you’ll need to take a number and get in line. I doubt Minnie is happy with her employer right now.

Easy money  On October 28, 2019, the US Department of Labor announced that, in fiscal year 2019, its Wage and Hour Division recovered a record $322 million in unpaid wages owed to workers. Secretary of Labor Eugene Scalia remarked that “these record-breaking numbers top the department’s totals from last year, which also set records, and confirm our ongoing commitment to strong enforcement…” In other news, the DOL’s Office of Federal Contract Compliance announced it had smashed its record on this front and brought in over $40 million. [Caution: shameless plug ahead!] It’s time for us to schedule an HR compliance assessment.

That’s what I’ve been saying!  In June, I wrote an article titled, “Is your training preventing sexual harassment or making it worse?” Unfortunately, the answer is likely, yes. Or, at best, a qualified no, because it had no effect on workplace behaviors at all. According to a Cornell Survey Research Institute report released in October–coincidentally on the heels of NY State’s deadline for employers to provide harassment prevention training–31% of women and 19% of men reported being sexually harassed at work. That amounts to 3.9 million New Yorkers experiencing workplace sexual harassment during their careers. Maybe it’s me, but I don’t think a crappy 45-minute video is going to solve this issue. 

Let it be written, let it be done  My team has written many excellent employee handbooks which include policies on topics ranging from attendance, to payroll, to workplace safety. All the policies are legally compliant and sound great. However, that’s only half of the equation. It’s not enough to have compliant policies; employers must also follow and enforce those policies. Anything less is a recipe for disaster.  According to Beth Zoller, JD, XpertHR legal editor, “an employer should frequently review the policies in its handbook to see if any need updating based on a change in any law or workplace practice or as the result of a workplace incident which requires clarification of a policy.” The primary purpose of your employee handbook is to educate employees about your policies and procedures and help them understand what they can expect from their employer. If your actual practices differ from your policies, neither purpose is satisfied, your credibility is undermined, and employment claims are more likely to occur.

The time has come!  In case you missed it, the Farmer’s Almanac is here to remind you that daylight savings time ends this Sunday, November 3. So, it’s time to “fall back” to standard time. That’s important for those of us who still have a clock or watch not connected to the Interwebs. Enjoy the extra time!

Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Oct 25, 2019

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Boo pumpkinsHappy friday!

How can Halloween be next week? So much happens at this time of year, but one of my favorite things is seeing dozens of children in costume running up our driveway. The excitement in their voices as they yell “trick or treat!” is the best! Whatever your plans, I hope you have a safe and enjoyable experience.

That’s frightful!  Speaking of Halloween, I suspect some employees may need a gentle reminder about boundaries for decorating and celebrating at the office. As my good friend Matthew Burr explains, seasonal office celebrations can offer fun opportunities for co-workers to engage, but there are pitfalls to avoid. If Halloween is a reason to celebrate where you work, here are a few suggestions to consider: Decorate with a few small pumpkins around the workplace, but avoid demons, goblins, and gore. Provide guidelines and examples of acceptable costumes, and take a hard stand against political, offensive, sexually suggestive, and otherwise inappropriate costumes. And finally, never require participation or allow anyone to retaliate or harass those who choose to avoid the festivities. Although some workplace rules may be relaxed for the day, it should never be an excuse for inappropriate behavior. 

“Notice” yet?  I agree it wasn’t my most clever play on words. Earlier this year, Governor Cuomo signed legislation (significantly) amending the state’s Election Laws. The amended law requires employers to provide employees who are registered voters up to three (3) hours of paid time off to vote at either the beginning or end of their shift. Also, employers are required to post a Time Off to Vote Notice—at least 10 working days prior to election day—where employees will see it as they enter and leave the workplace. Employers can use the NYS sample form, or download a sample my team created.

Does context matter?  I’ve never been a fan of zero-tolerance policies, because they ignore context and, all too often, common sense. Think about a first-grader being suspended for bringing a spork to school in violation of a no-weapons policy. Or the story of Marlon Anderson, a black security guard at a Madison, WI high school. Last week Anderson was fired for using the N-word. The context? As Anderson was escorting a disruptive student (also black) out of the school, the student called him the N-word and used other obscene words. “Do not call me a (N-word),” Anderson said, except he used the word. After days of community outrage, a student protest, and a good dose of national attention, Anderson got his job back

Proper pronouns  According to a Pew Research survey, about 20% know someone who prefers a pronoun other than “he” or “she.” So, what happens when gender non-conformity becomes a workplace policy issue? Consider Peter Vlaming, a teacher who was fired for refusing to refer to a transgender male student by “he” and “him,” using the student’s name instead. According to court filings (the teacher is suing the school district), Vlaming “believes both as a matter of human anatomy and religious conviction that sex is biologically fixed,” so using male pronouns when referring to the student would violate his religious beliefs. I’ll be watching this, and similar cases and keep you updated.

Being a good boss  Happy belated boss’s day to all you bosses reading this! If you’re already planning the necessary strategies to get your own Edible Arrangement next year (thanks again, Lisa and Justin, it was delicious!), LinkedIn Learning wants to help. According to their survey results, overwhelmingly, people want a manager to help problem solve the challenges they face. The top five qualities are problem-solving (68%), effective time management (44%), decisiveness (41%), empathy (38%), and compassion (36%). 

Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Oct 18, 2019

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Happy Friday!

Ever had one of those weeks where there are more demands on your time than time to give? We all have. But, somehow, we get it all done! If your week has been like mine, it’s time to celebrate our successes! So, grab your favorite drink, find a comfortable spot to relax, and enjoy this week’s edition of Fridays with Frank…because you’ve earned it!

Who says that (insert poop emoji here)?  For today’s installment of “always engage your brain before your mouth,” we travel across the pond. A teacher in England told her class of 28 ten-year-old students, including 11 Jewish children, “You better finish off your work quick, or I’ll ship you all off to the gas chambers.” Yes, you read that correctly. The teacher quickly apologized and asked the children not to tell anyone. Of course, the children knew better and told their parents. The school acted quickly and wisely fired the teacher.

Would you know how to handle a similar situation if it happened in your workplace? Can a single, sufficiently severe comment or stray remark create a hostile work environment? (Yes!) Does the intent of the commenter matter? (No!) The impact on those receiving the comment is all that matters. Now, ask yourself, as an employer, do you view harassment prevention training as a tool to educate employees, demonstrate respectful workplace behaviors, and prevent comments like the one from the teacher? Or, do you find the quickest, cheapest training only to show you did something? My team works with both types of employers. We provide meaningful training and support for the first group. Our work with the latter group begins when their attorney hires us to conduct a workplace harassment investigation.   

Quid pro quo of a different kind  According to a July 2019 survey of 10,500 job seekers with student loan debt, 63% would give up paid time off (PTO) in exchange for their employer’s help paying their student loans. Although slowly gaining traction, few employers (~8%) offer student loan repayment assistance as an employee benefit. However, that could change. Read on…

It’ll take an act of Congress  Introduced in February 2019, the bipartisan, bicameral Employer Participation in Repayment Act of 2019 (H.R. 1043 and S. 460) would allow employers to provide up to $5,250 in annual student loan repayment assistance to each eligible employee as a tax-free benefit. It’s hard to understand why—with student loan debt increasing an incredible 96% since 2010—Congress hasn’t acted on this legislation since its introduction! Now is your time to take action by calling and writing your representatives. You can also use social media to convey your support. Don’t forget to include the Twitter handle for your members of Congress and use the hashtags #HR1043, #S460, #StudentLoan, and #EduLoanBenefit. Get those fingers busy! 

When did that become a rule?  U.S. Supreme Court Associate Justice Sonia Sotomayor was the first and second justice to violate new guidance that provides each attorney two minutes of uninterrupted time to present their argument. It seems Justice Sotomayor couldn’t contain herself as attorney Paul Hughes began speaking in an immigration case. In the second case of the day, Justice Sotomayor again began to interject too soon, but this time caught herself. With each side typically limited to 30 minutes—and attorneys at times struggling to complete a thought or sentence while being bombarded with questions from the justices—I imagine the two-minute rule is a welcomed change.

Speaking of rule-breakers  This one has nothing to do with employment law, but it is an excellent example of ethical behavior and accepting negative consequences. Having last played in the LPGA in 2008, Lee Ann Walker knew there were significant rule changes she needed to review before  playing in the Senior LPGA Championship at French Lick Resort in Indiana. Unfortunately, until a competitor’s caddie pointed out her violation during the second round, she wasn’t aware of a new rule that prohibits caddies from lining up golfers on putting greens. After contacting a rules official to discuss the issue, Walker herself determined she was due 58 penalty strokes (in case you’re not a golfer, that’s really bad!). “I’m glad I went. I got to see a lot of great friends, it was a great golf course, great event…Everything was great except for my penalties.”

Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Oct 11, 2019

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Happy Friday!

It’s been a busy week for everyone. In fact, for many of the attorneys and HR professionals I’ve spoken to, the last several weeks have been a blur. We’ve all been conducting countless Sexual Harassment Prevention Training sessions as employers scrambled to meet the Wednesday, October 9 deadline set by NY State. (If you didn’t make it, give me a call to discuss your options.) With that done, for the time being, I don’t know what I’ll do with all the extra time!

The gang’s all here!  Well, almost. The U.S. Supreme Court opened its 2019-2020 term on Monday, October 7, 2019, without Justice Clarence Thomas. In his opening comments, Chief Justice John Roberts said Justice Thomas was “indisposed” due to an illness. However, as Justice Ginsberg did during her absence from the Court last Term, Justice Thomas will listen to the recorded sessions and will participate in deciding the cases presented to the Court while he is absent.

The definition of “sex”  On Tuesday, the Supreme Court heard oral arguments in three LGBT workplace rights cases: Bostock v. Clayton County and Zarda v. Altitude Express, Inc. (consolidated) and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. In Bostock and Zarda, the Court is asked to decide whether discrimination based on sexual orientation is included in Title VII’s ban on discrimination “because of sex.” Harris presents a similar question, whether gender identity is also included in Title VII’s prohibition on discrimination “because of sex.”

The deep end of the (tip) pool  Following up on its April 2019 bulletin, which clarified tip pooling under the Fair Labor Standards Act (FLSA), the federal Department of Labor (DOL) announced its proposed rules on the issue. As James McBride, an attorney with Ogletree Deakins, explains, the DOL confirmed its interpretation that employers that do not take a tip credit are now permitted to include back-of-house employees in the tip pool. The comment period for the proposed rules, which are not final, is open until December 9, 2019.

Higher overtime threshold complicate benefits plans  Although the new federal overtime rule appears to have minimal impact on employers in NY State, it’s important to remember the State’s overtime threshold will increase December 31, 2019. It’s also important to understand the effect those changes may have on benefits plans. Benefits eligibility, premium sharing levels, matching contributions to retirement plans, and discrimination testing should all be evaluated before the end of the year.

There’s a fact sheet for that!  The federal Department of Labor (DOL) recently published USERRA Fact Sheet 1, which addresses several issues involving service members and their pension rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Will there be a Fact Sheet 2? I’ll let you know.

Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Oct 4, 2019

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toy carsHappy Friday!

You’ve heard it (and maybe said it yourself) countless times this week: I Can’t believe it’s October already! Or, as my father, Sam Cania, would say, “before you know it, Christmas will be here and gone!” I didn’t understand the meaning of that statement back then, but it’s all too clear now that our children are grown and we have a grandson!

Speaking of our toddler grandson, Connor, he’s waiting patiently for me to play with his trucks. So, as much as I enjoy spending time with you, I have a play date!

Tic, tic, tic…time is running out!  The deadline for the Sexual Harassment Prevention Training required by NY State is next Wednesday, October 9, 2019! Still have employees that have not completed sexual harassment prevention training? HR Compliance Experts is offering an online, on-demand training program—at the special price of $25.00 per employee—for last-minute compliance. Email theexperts@hrcexperts.com for more information or to register your employees.

A flag on the play!  Rontez Miles, a NY Jets player, is suing the National Football League (NFL) for disability discrimination under applicable state and federal law. Miles has alopecia areata, a condition causing an optical sensitivity to light. To mitigate the effects of this condition, Miles played his entire career with an eye shield, in addition to his helmet and faceguard. That changed when, before a 2017 preseason game, an NFL official “demanded” he remove the shield or not play in the game. Playing without the shield, and unable to take appropriate defensive measures due to the bright sunlight, Miles suffered a broken orbital bone when he “took a thumb or finger directly to the eye.” Ouch!

Who’s the party pooper now?  A Manhattan medical office is being sued by the Equal Employment Opportunity Commission (EEOC) for religious discrimination. In December 2018, Pediatrics 2000 fired an administrative assistant after she requested not to attend a company party because it would violate her religious practices as a Jehovah’s Witness. According to the suit, the employer excused other employees from attending the party for “non-religious” reasons. How was she fired, you ask? A text from the owner that read, “this is your last day of employment. We can’t tolerate religious privileges from anyone.” 

If you can’t say something nice…  According to my mom, that phrase ends with, “…don’t say anything at all.” Somebody at Kickass Masterminds, an Austin, TX marketing company, didn’t learn that lesson. After Emily Clow applied for a “Kickass” internship, she was shocked to find a photo of herself in a swimsuit on the company’s Instagram story, along with, “PSA…do not share your social media with a potential employer if this is the kind of content on it. I am looking for a potential marketer–not a bikini model.” Did I forget to mention the company was founded and is primarily run by women? 

NY State strengthens protections for domestic violence victims  Although NY State Human Rights Laws (NYSHRL) currently bar workplace discrimination against domestic violence victims, Governor Cuomo recently signed legislation that will grant additional protections to these employees. According to an alert from Kramer Levin, effective November 18, 2019, the NYSHRL will identify prohibited discriminatory practices and require employers to provide specific accommodations to employees who identify as victims of domestic violence. 

Thanks for spending a small part of your day with me, and have a great weekend! 


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

 

Fridays with Frank – Sept 27, 2019

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Happy Friday!

September has been a whirlwind! First, with the October 9th deadline quickly approaching, I’ve conducted countless Sexual Harassment Prevention presentations (NY employers, remember the October 9th deadline!). Then, in addition to I-9 Palooza!, I spent three days at the NY State SHRM Annual Conference in Albany, where I had the pleasure to present on both the US Supreme Court and legislative advocacy for HR professionals.

But, the world doesn’t slow down because I’m busy. So let’s catch up together with another exciting edition of Fridays with Frank!

Welcome Mr. Secretary  On Thursday, the US Senate confirmed Eugene (Gene) Scalia as the Trump Administration’s new Secretary of Labor. The Senate voted along party lines (53-44) to confirm Scalia, a former solicitor of labor during the George W. Bush administration, and son of deceased Supreme Court Justice Antonin Scalia. The Secretary takes over the Department of Labor at a busy time, with a new overtime rule effective January 1, 2020, and other regulatory changes at various stages of the approval process.

Wow! It Only Took 15 Years!  On Tuesday, the federal Department of Labor (DOL) issued its updated final overtime rule. As you may remember, the DOL, under the Obama Administration, issued an update to the overtime regulations raising the minimum annual salary for the white-collar exemptions to more than $47,000. A federal judge in Texas halted the rule from being implemented just days before its December 1, 2016, effective date. The Trump Administration’s overtime rule, effective January 1, 2019, increases the minimum annual salary for exempt employees to $35,568 ($684/week). However, employers in states with higher minimum salary requirements–like NY and CA–must comply with state rules.

That’s Not On The Menu!  Closer to home, on Monday the Equal Employment Opportunity Commission (EEOC) announced it had filed a lawsuit against Green Lantern Inn, Inc., dba, Mr. Dominic’s on Main, located near my home in Fairport, NY. According to the lawsuit filed in US District Court, the restaurant’s head chef sexually harassed two female employees. His conduct included inappropriate physical contact; repeated sexually inappropriate, hostile, and offensive comments; and explicit requests for sex.

Does FMLA Stand For The Friday and Monday Leave Act?  Anyone who has administered the Family and Medical Leave Act (FMLA) knows its coverage is intentionally very broad. Exactly how broad? For one employee, playing golf on days designated as intermittent FMLA leave for severe shoulder pain was out of bounds. But, you know it doesn’t end there. Check out Eric Meyer‘s explanation of what happened next, and some valuable employer and HR takeaways, in The Employer Handbook.

Discrimination, With A Twist  Unfortunately, some employers continue to discriminate in the hiring process. You know the scenario; employer discourages minority applicants, imposes unjustified “English-only” requirement, hires less qualified non-minority candidates, etc. What’s the twist? Marquez Brothers International, a producer and distributor of Mexican-style foods, discouraged and refused to hire, non-Hispanic applicants for unskilled production and warehouse positions. Among the employer’s unlawful tactics outlined in the Equal Employment Opportunity Commission’s $2 million settlement with the employer, an unnecessary “Spanish-only” requirement.

Lastly, a belated Happy National HR Professionals Day to my team at HR Compliance Experts, and all my friends and colleagues!  

Thanks for spending a small part of your day with me and have a great weekend!


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

 

New Overtime Rule Issued By US Dept. of Labor

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On September 24, 2019, Acting Secretary of Labor Patrick Pizzella announced that “for the first time in over 15 years, America’s workers will have an update to overtime regulations that will put overtime pay into the pockets of more than a million working Americans.”

Effective January 1, 2020, updates to the federal Fair Labor Standards Act (FLSA) overtime regulations include: 

        • An increase to the minimum salary amount for “exempt” employees to $684 per week ($35,568 annualized);
        • An increase to the minimum annual compensation required for the “highly compensated employee (HCE)” exemption to $107,432 annually; and
        • A new rule allowing employers to use non-discretionary bonuses, commissions, and other incentive payments paid at least annually to satisfy up to 10 percent of the minimum salary requirement.

Pizzella described the DOL’s most recent efforts to update the overtime rule as bringing “a common-sense approach that offers consistency and certainty for employers as well as clarity and prosperity for American workers.”

The one remaining question is, will any of those opposed to the new rule–many of whom supported the Obama Administration’s overtime rule setting the minimum salary at approximately $47,000–mount legal challenges in an attempt to stop the rule for taking effect? I’m pretty sure they will. So, stay tuned!

NY STATE EMPLOYERS: Although state Labor Standards include higher minimum salary amounts for the executive and administrative exemptions, there are other situations where the federal overtime regulations apply. NY employers should become familiar with the State’s Labor Standards, as well as the rules under the FLSA, to ensure they are following the appropriate regulations in each situation.

HR Compliance Experts offers a number of services for employers of all sizes. Our HR Compliance Risk Assessment is designed to identify potential noncompliance issues, including FLSA and State Labor Standards violations, provide solutions to resolve even the most complex issues, and follow-up to ensure compliance going forward.

Please contact me at frank@hrcexperts.com, or 585-416-0751, with questions, or for more information on the services provided by HR Compliance Experts.


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.