Employer Retaliation - # 1 EEOC Complaint

Protect Your Business from EEOC & DFEH Retaliation Claims

In recent statistics released by the US Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH), for the fiscal year 2016, retaliation was the number one charge against employers on both the state and national levels.

Nationally, retaliation took the No. 1 spot with 42,018 charges (45.9% of all charges filed).

In California, retaliation (all statutes) also took the number one spot with 2,937 charges filed (7% of total U.S. retaliation charges).

Employers must remember that the same laws the protect employees from discrimination and harassment also protect them from retaliation.

Under California law, workplace retaliation is unlawful if an employer punishes an employee for protected activities which include: reporting illegal conduct, refusing to engage in illegal conduct, reporting fraud, filing a wage claim with the California Labor Commissioner, filing discrimination lawsuits, complaining of workplace discrimination or harassment and assisting other employees in filing a lawsuit or complaint of illegal activity in the workplace.

Federal law also protects employees from workplace retaliation if they file a discrimination or harassment complaint at work. An employer also cannot lawfully punish an employee for cooperating with EEOC investigations or if they decide to serve as a witness against the business. This is also true of whistleblower activities such as complaining of unsafe working conditions.

Savvy HR Departments must keep a lookout. It may be easy to identify a manager’s retaliatory activity when they want to immediately terminate an employee shortly after they file a harassment complaint. However other times it’s not as clear. Remember that only those changes that have an adverse effect on employment are considered retaliatory.

Below are some examples of activity that can be considered retaliation:

• Unfair disciplinary action
• Negative performance reviews
• Micromanagement shortly after filing a complaint
• Exclusion from project meetings that you’ve been working on
• Denial of ongoing training
• Denial of promotions
• Denial of raises
• Increased workload
• Termination

How can you ensure that your company is not charged with retaliation?

HR must have an open door and empower employees to report complaints and must communicate to both employees and managers that there is a zero tolerance policy on retaliation.

HR can help deter retaliation by incorporating best practices that will help employers prevent or reduce the likelihood of a retaliation charge or lawsuit.

Employers should take the following steps to prevent retaliation:

• Create an anti-retaliation policy.
• Communicate with employees about the process for reporting alleged retaliation.
• Train managers and employees.
• Remind supervisors under investigation of the organization's anti-retaliation policy that they will be subjected to disciplinary action if they retaliate against individuals who complain of discrimination or who provide information related to a discrimination complaint.
• Monitor the treatment of employees who file a workplace complaint or who provide information related to a complaint.
• Investigate allegations of retaliation and take prompt corrective action when warranted.

Internal complaint procedures are an important component of any initiative to prevent retaliation claims. Ensuring that employees have an avenue to report concerns isn’t just helpful; in many cases, it is required by law.

Communicating and training your managers to identify protected activity and to ensure they moderate their own actions toward employees is also crucial in preventing retaliation.

Lauren Sims, the author this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

When is an ON-DUTY Meal Period is Permissible?

Recently, I was asked by a client if they were in compliance if they had a non-exempt employee who could not take a meal period but paid them the hour as straight time. The non-exempt employee is a shift supervisor and cannot be relieved of their duties for 30 the required minutes.

My first reaction was, “of course not!” But then I thought about it for a minute, and realized that they were essentially paying the employee for an on-duty meal period every day, and if they had an on-duty meal period agreement with this employee, could it be ok?

To answer my own question, I did some research and yes, in fact, it could be ok. However, how the employer defines whether or not the employee can be relieved of all duties is the key to whether this is permissible or not.

In California, generally, employers are required to provide meal and rest periods to non-exempt employees. Under the applicable California Industrial Welfare Commission (IWC) Wage Orders, employers must provide a 30-minute, off-duty meal period prior to the end of the fifth hour of a work shift.  

As a refresher, the Division of Labor Standards Enforcement (DLSE) has set forth the following three criteria in assessing whether an On-duty meal period is permissible:

1. The nature of the work must prevent the employee from being relieved of all duty during the meal period;
2. The employee and employer must have previously entered into a signed agreement authorizing an on-duty meal period; and
3. The signed agreement must expressly state that the employee may, in writing, revoke the agreement at any time.

The next step - Determine if the employee cannot be relieved of duty.

The DLSE applies a “multi-factor objective test” to determine whether the nature of the work justifies an on-duty meal period:

• The availability of other employees to provide relief to an employee during a meal period;
• The potential consequences to the employee, if an employee is relieved of all duty;
• The ability of the employer to anticipate and mitigate these consequences; and
• Whether the work product or process will be destroyed or damaged by relieving the employee of all duty.

The DLSE website provides examples of jobs when on-duty meal periods meet this standard, including:

1. A sole worker in a coffee kiosk
2. A sole worker in an all-night convenience store
3. A security guard stationed alone at a remote site

In an opinion letter, the DLSE has stated that on-duty meal periods were not appropriate for a fast food shift manager when other employees were present. The same would apply to a shift manager in another retail store environment.

In the letter, the DLSE states that they “cannot fathom why the other employees of the restaurant could not function in the absence of the shift manager for thirty minutes.” Even, as the employer asserts, that the employees may have questions that only the shift manager can answer.

So, what does that mean for most employers?

If you have a non-exempt employee who is not the sole worker at a location and cannot take a meal break, you should pay them the meal penalty for those days they could not take a meal break, or could not take their meal break before the end of the fifth hour of work.

If you have an employee who is a sole worker at a location and the nature of their work fulfills the requirements above, then you may provide them an on-duty meal period.

Please remember that you have to allow them the opportunity to eat a meal during their work time before the end of the fifth hour of work.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

Time for an I-9 Compliance Refresher?

I-9 Compliance

The Immigration Reform and Control Act of 1986 (IRCA) was established to prevent individuals who are not eligible to work in the United States from performing work. The act requires employers to complete an I-9 form for each employee within three days of hire.

Employers are required to perform the following I-9 verification requirements and to treat all new hires the same. This includes the following:

1. Complete the I-9 form for all new hires. This form establishes that individuals hired are authorized to work in the United States.
2. Permit employees to present any document or combination of documents acceptable by law. Employers cannot prefer one document over others for purposes of completing the I-9 form. If the documents are unexpired, allowed according to the list of acceptable documents on the most current I-9, and appear to be genuine and issued to the person presenting them, they should be accepted. Acceptable documents are listed at the end of the I-9.
3. Update and re-verify I-9s as needed.

If you discover problems with your I-9s, consider taking the following actions:

1. Conduct an audit to understand the scope of the problems;
2. Address problems that you find; and
3. Attempt to prevent future problems by implementing best practices.

Best Practices for Conducting an I-9 Audit

Step One: Preparing for the Audit

Determine the scope of your audit, will you review all the i-9 forms or only a sample? If you choose to review a sample, select the sample carefully. Make sure not select the forms to be audited based on employee's national origin or citizenship status. The safest approach may be a random sampling of forms.

Step Two: Conducting the Audit

Employers must check to see that there is an I-9 on file for every current employee who performs work for the employer in the United States. Employers should keep a list of current employees for whom they do not have an I-9.

Employers should not have an I-9 for nonemployees who may perform work, such as volunteers, independent contractors or consultants. If an employer does have an I-9 for these individuals, it should be removed from the employer's official I-9 file.

Employers should have two files of I-9s:

1. I-9 forms (electronic or paper) for current employees.
2. I-9 forms (electronic or paper) for terminated employees.

What to look for when auditing

1. Missing forms

2. Employers need to check the following information in each section of the I-9:

1. Section 1
1. The name, address, maiden name and date of birth must be completed.
2. For the current I-9, the Social Security number is voluntary except for employers that participate in the E-verify program.
3. The employee must identify his or her immigration status and sign and date the form.
4. The preparer or translator section is to be completed only if someone other than the employee completed Section 1 on behalf of the employee.
2. Section 2
1. The proper document must be entered into the appropriate column. For example, employers must ensure that a List B document is in fact listed under List B and not under List C or List A.
2. All required information must be entered for each document.
3. The documents listed must satisfy the requirement to provide both proof of identity and proof of eligibility to work in the U.S.
4. The certification section must be completed, and a representative of the company must sign and date the form.
3. Section 3
1. This section should be completed only if the employee's work authorization expired or if the employee has been rehired. It can also be completed if the employee had a name change, but this is not required. In most cases, Section 3 will be blank.
2. Expired permanent resident cards and List B documents from the I-9 do not need to be reverified. These documents must not be expired when the I-9 is initially completed, but their subsequent expiration does not trigger the requirement to re-verify the I-9.
3. You should exercise caution throughout the audit to avoid unlawful immigration practices. The purpose of your audit is to ensure compliance with the federal immigration law, not to target or single out specific employees. Ensure that nothing about the timing or scope of the audit is or could be perceived to be discriminatory or retaliatory.

Step Three: Address Problems in the I-9s

Each I-9 should be reviewed and put into groups based on your findings. The problem I-9s will be handled separately and in priority order. Current employees who have no I-9 on file are the highest priority, as their eligibility to work in the United States should be verified as quickly as possible.

Missing I-9s

If you have missing I-9s, you should complete the current version of the I-9 as soon as possible. You should not backdate the form when you sign it, although you should indicate the actual date employment began in the relevant section.

Missing or Incorrect Information on the I-9

The employer should not make any corrections to Section 1. If you find incorrect or missing information in this section, the employee will need to make any necessary corrections. To do so, the employee should draw a line through the incorrect information, enter the correct or missing information, and initial and date the corrected or missing information.

If an I-9 for a former employee contains incorrect or missing information, you can attach a signed and dated statement to the existing I-9 identifying the incorrect or missing information in the form and explaining that the I-9 cannot be corrected because the employee is no longer employed by you.

Employers should follow the same procedure for missing or incorrect information is in Sections 2 or 3. You should not try to conceal changes made to I-9s, either by erasing or covering up existing information. If there are too many errors to correct, you can redo the sections (2 and/or 3) containing errors on a new I-9 with the complete and accurate information, sign and date it with the current date, and staple it to the existing I-9.

Whether you correct an I-9 on the existing form or on a new form, you should also always attach a signed and dated explanation of the action taken.

If Sections 2 or 3 were not completed on the existing form, you should complete them as soon as possible, list the actual date that the person’s employment began and sign and date the section with the current date. Also attach a signed and dated explanation of the steps taken to correctly complete the I-9.

Step Four: Complete the Audit

As corrections are made and missing I-9s begin to come in, an employer's task will be to organize the I-9s and clearly document the steps it took during the audit. Employers can refer to the guide on how to retain and file I-9s for additional guidance on how to organize their I-9 files. Employers may wish to print this procedure to document the process they followed during the audit process. Employers should also retain the I-9 audit logs and communications to employees regarding the I-9 audit process. Employers may wish to keep the audit documentation in a separate I-9 audit file or to place this documentation in their files with the I-9 forms themselves.

Ensuring your I-9s are compliant is extremely important. Employers can face civil and criminal penalties for knowingly hiring or continuing to employ individuals who are not authorized to work in the United States. Federal immigration law requires that all employers verify that an individual is authorized to work in the United States before employing that person. You verify employment eligibility by completing the I-9 for every new employee. If you don’t comply with the requirements — either by not completing the form or not doing so properly — you can face sanctions.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for size businesses throughout Southern California.

Are You Part of the 90% Club - Businesses Who do not Administer COBRA Correctly?

Administering COBRA Correctly

Recently, while I was on hold with a payroll company, their hold music announcer talked about the highlights of their system and reported that the IRS estimates that 90% of companies do not administer COBRA correctly.

Below are some important things you need to know about COBRA coverage to ensure you are part of the 10% that is in compliance:

What is COBRA?

COBRA is an acronym for the Consolidated Omnibus Budget Reconciliation Act, the federal law that also amended ERISA to enable temporary health insurance for people who have lost or left their jobs. The law took effect in 1985. COBRA is designed to let covered employees and their families keep their employer-sponsored health insurance for a limited time after they lose coverage due to a qualifying event.”

Who Must Offer COBRA?

Any employer that offers a group health plan and that employed at least 20 full-time equivalent employees for at least 50% of the previous calendar year must offer COBRA to its covered employees and their eligible dependents.

Who Do you Offer COBRA to?

Any individual that was covered by a group health plan the day before a qualifying event occurs that caused a loss of medical coverage. This may include an employee, spouse, former spouse or dependent child.

What are COBRA Qualifying events?

Qualifying events are changes in employments status or life events that cause an individual to lose group health coverage.  The following are qualifying events for covered employees:

• Termination of the covered employee’s employment for any reason other than gross misconduct;
• Reduction in the hours worked by the covered employee, so the employee is no longer eligible for health insurance;
• Covered employee that becomes entitled to Medicare;
• Divorce or legal separation from the covered employee;
• Death of the covered employee; or
• Dependent child status changes, for example, they become ineligible after age 26.

What are the Required COBRA Notifications?

1. Initial Notification- Employers must give each employee and each spouse who becomes covered under the plan an initial notice describing their COBRA rights.  The initial notice must be provided within the first 90 days of coverage. We recommend including it in your new hire package.

2. An employer must provide a  notice within 14 days after receiving notice of the qualifying event or the employee’s and their qualified dependents rights to elect continued coverage.

3. Employers must notify any covered, terminated employees of their Cal-COBRA continuation rights. Cal-COBRA must be offered to both terminated employees of small employers (2-19 employees) and terminated employees covered under federal COBRA when their 18 months of federal COBRA coverage expires.

What must the Employer offer for COBRA Coverage?

If the covered employee elects continuation coverage, the coverage must be identical to the coverage currently available under the Plan to similarly situated active employees and their families (generally this is the same coverage the covered employee had immediately before the qualifying event).

How long is COBRA coverage?

Usually, it is 18 months under Federal COBRA, with an additional 18 months offered under Cal-COBRA.

Can COBRA coverage be terminated before the 18 or 36-month period?

Yes, for any of the following reasons:

• The employee does not pay their premiums on time;
• The employer stops offering group health plans;
• The employee or dependent begins coverage under another plan;
• The employee or dependent become entitled to Medicare; or
• The employee or dependent commits fraud.

How much does COBRA Cost?

The employee pays the premium for COBRA coverage. The employer can add an additional 2% to the premium to cover administrative costs, but the amount charged cannot exceed 102% of the premium. Cal-COBRA is usually administered by the benefits carrier.

What Happens if my Business does not Comply?

You can be subject to steep fines, and in some cases pay claims and lawsuits from former employees. The courts have demonstrated that they take COBRA cases very seriously and usually side with the plaintiffs.

What Should I do to Comply?

Add initial notifications to your new hire checklists and qualifying event notices to your termination checklists.

Lauren Sims is the author this article and is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support and ADP payroll product training and payroll processing services for businesses throughout Southern California.

Do you Understand California's Floating Holidays Rules?

California's Floating Holidays Rules

Many employers in California, as part of the paid time off benefits they provide to employees, offer a Floating Holiday. Like all paid time off granted to employees, Floating Holidays are a nice extra little gift used to promote morale and work-life balance.

Many employers will grant a Floating Holiday that is tied to a specific event, for example, the employee’s birthday. Other employers will just grant a day to the employees to be taken whenever the employee wants and for whatever reason they choose.

Like paid holidays and other paid time off, providing Floating Holidays is not a legal requirement. However, if your company decides to offer them, they must be fair and consistent in how they grant the time. For example, if you decide that full-time employees will receive 1 Floating Holiday every year, you must grant 1 Floating Holiday to all full-time employees every year.

Sounds simple, right? But in California, things are never as simple as they seem.  Employers who wish to grant Floating Holidays need to be careful about how they decide to set up their Floating Holiday program so that it is clear how and when employees can use the Floating Holiday and if they need to pay out untaken Floating Holiday at the end of the employee’s employment.

There are two ways to set up a Floating Holiday program. The first is to treat the Floating Holiday as unrestricted. Employees can take a day off any time they chose, regardless of the occurrence of any other event. With this approach, courts are likely to treat floating holidays as simply vacation by another name. As such, any unused floating holiday must be paid out at the time of the employee’s termination, along with any other wages owed. Also, with this approach, you would not be able to have a “use it or lose it” provision. Instead, you can cap the Floating Holiday at, for example, 1 day so there is never more than 1 day's worth of liability.

The other approach is for the employer to tie floating holidays to the occurrence of a specific event. This approach requires that floating holidays be used on or near specific days (such as on or near the employee’s birthday). The right to take the day off does not arise until the occurrence of the event to which it is tethered; that is, if the employee is no longer employed upon reaching a birthday (in this example), the right to take the associated floating holiday never happens. In that case, the floating holiday would be treated like a regular paid holiday, which is not owed until the event (e.g., Thanksgiving, July 4th) occurs. Consequently, pay for the unused holiday pay would not due upon termination.

Employers should carefully create a written policy surrounding their granting and use of floating holiday. It’s important to have your policy clearly reflect when floating holidays may be taken and what happens if the floating holidays are not taken. If floating holidays can be taken at any time, then it is important to track the employee’s accrued and unused floating holidays. Those must be paid out at the time of termination.

Lauren Sims, the author this article is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation / training and payroll processing services for businesses throughout Southern California.