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By
I. Jeffrey Pheterson
Everyone who flies knows the safety precautions to be
used in an emergency. Parents place oxygen masks on
themselves first and then, and only then, place masks on
their children. The principle is a simple one: You
cannot help others if you are in need of help yourself.
The potential threats these
days are many – increased hurricane and tornado
activity, pandemic bird flu, dam failure, or a
terrorist
attack. While
some business disruptions are unavoidable in
emergencies, adequate preparation can prevent some
closures and shorten others. And like parents on a
plane, you can’t attend to the needs of clients,
customers or employees until you have your own emergency
procedures in place.
Develop a Plan
Organization and planning are the keys to successfully
weathering business disruptions. There should be a group
within the organization responsible for developing a
written plan. Someone must be tasked with the specific
responsibility to monitor potential threats and keep
others informed. Another person should be designated as
a secondary monitor. Select the individual who will
decide when to leave the premises and when to re-enter,
who will protect critical equipment, and who will take
charge if some key personnel cannot be present at the
office. Develop and test telephone trees, with redundant
confirmatory calls from the bottom to the top.
Test the Plan
Make sure your organization conducts employee training
on the new policy and full scale practice runs or
drills. Staying calm in an emergency is critical, and
that calm results from practice and communication of a
clear and consistent emergency procedure.
In the event of a business closure, it is vital to
reopen promptly, with minimal damage to the
infrastructure of the business. Being proactive in
planning, training and practice of emergency procedures
often means getting back to business more rapidly.
Remember the Lessons of
Katrina and Wilma
In drawing up your emergency plan, you must answer a
diverse set of questions. Where do employees work if
your regular offices are not usable? How can the
geographic diversity of operations be used to your
advantage? How do you cope without electricity or
phones? Are your computers safe? How will you pay your
employees? Will employees need some assistance in the
short term? Do you need business interruption insurance?
How can you monitor and document losses and downtime for
potential recovery?
Computer operations are the life blood of most
companies. Is there off-site data storage, and is it
secure? Ideally, employees and IT personnel should have
remote access to company data from their homes, to keep
at least some aspects of the business operational.
Grace Under Fire
To be forewarned is to be forearmed. Act now to minimize
disruptions to your business and to those you serve.
Each business is different, and there is no “one size
fits all” plan. In coordination with your HR and legal
departments, you must think of the unthinkable and
prepare.
What your clients, customers and employees will seek is
calm reassurance. That can only be achieved if you have
taken affirmative steps to be prepared. Review and
update your policy on emergency procedures, and then
follow through by training and drilling your employees
on their roles. Only then can you rest assured that,
when others are panicked, you are prepared.
_______________________________
Jeff Pheterson
is a Shareholder in the Employment & Workers'
Compensation Practice Group. He can be reached at
jpheterson@bdblaw.com
or
561.241.0414.
By
Denise J. Bleau
 Whether
it’s hurricanes in Florida, flooding in the Northeast,
tornadoes in the Midwest, or earthquakes in the West,
natural disasters are all too common these days. Many
of our clients want to know, “When a natural disaster
strikes, what are my responsibilities to my
employees?”
Here are the answers to two frequently posed questions:
1.
Are employers required to pay the employee
for time missed due to natural disaster-related issues
(blackouts, gas shortages, office closings, impassable
roads, etc.)?
No.
However, the Fair Labor Standards Act (“FLSA”) generally
requires that employees who are exempt from the Act’s
overtime requirements be paid their full weekly salary
for any week in which they perform work. Unless the
salary reduction satisfies specific requirements of the
FLSA, employees who are otherwise exempt from being paid
overtime may lose their exempt status if they are not
paid their full salary for weeks in which they perform
work.
To protect
the exempt status, the employee should be paid his or
her salary in full for time missed from work – unless
the business is closed for the entire week due to
inclement weather or lack of electricity, phones, etc.
If the business is closed for the entire week because of
natural disaster-related issues, employees do not have
to be compensated for this time. If closed for less
than a full workweek, the employees must be paid.
Also, if the business is open despite
the inclement weather (or lack of electricity, phones,
etc.) and the exempt employee does not (or cannot) come
to work, the law considers this an absence due to
“personal reasons.” Deductions from pay for a day or
more are permitted and the exempt status is still
preserved. Deductions for less than a full day,
however, will always jeopardize the employee’s exempt
status.
The
non-exempt employee (one who is entitled to be paid
overtime for hours worked over 40 in any week) is
entitled to be paid only for time actually worked.
Therefore, the employer is not required to pay
non-exempt employees for absences caused by natural
disaster-related issues (regardless of whether
the business is open or closed).
Regardless of the reason for the
absence, the employer may deduct time from vacation or
paid-time-off accounts. However, if the employee does
not have enough leave in his or her account, the salary
may not be reduced unless otherwise permitted under
circumstances described above.
2. Is
the employer required to grant Family and Medical leave
to employees injured as a result of a natural disaster,
even where staffing levels are critically low?
Yes, if the employer is subject to the
Family and Medical Leave Act (“FMLA”) (generally,
employers who employ 50 or more employees) and the
employee has worked for the employer for at least 12
months and at least 1250 hours in the prior 12-month
period. Employees who, as a result of a natural
disaster, suffer physical or mental injuries that fall
within the definition of a “serious health condition”
under the FMLA, or whose immediate family member suffers
a serious health condition, must be given FMLA leave if
they submit the necessary documentation. The time to
submit the documentation may need to be extended
depending on the circumstances of the natural disaster
aftermath.
The leave must be granted even if the
employer is suffering from severe staff shortages. The
employer must continue to pay for an eligible employee’s
health insurance during the time the employee is out on
FMLA leave, even during times of financial or other
critical demands on the business.
However, employees out on FMLA leave are
not entitled to any special or different treatment as
compared to those employees who were not out on leave at
the time the natural disaster occurred. An employee on
FMLA leave may be laid off, so long as the employer can
prove that the employee would have been laid off during
that time period had the employee not been out on leave.
There are many business and employment issues to
consider before a natural disaster occurs.
Please contact any member of BDB’s Workers’
Compensation/Labor and Employment Practice Group for
assistance in this process.
_______________________________
Denise Bleau
is a Partner in the Employment & Workers'
Compensation Practice Group. She can be reached at
dbleau@bdblaw.com
or
561.241.0414.
By
Douglas J. Paul
 Every
employer is required, by federal and state law, to file
a written report of every new hire, re-hire or the
return to work of an employee who has been laid off,
furloughed, separated, granted a leave without pay, or
terminated from employment. That report is transmitted
by the state where it is filed to the National Directory
of New Hires, a component of the Federal Parent Locator
Service, operated by the Federal Office of Child Support
Enforcement, pursuant to the Personal Responsibility and
Work Opportunity Act of 1996 (42 USC §653A). Each state
has enacted its own statutes to comply with the federal
law. There are some variations among the states.
Ohio’s codification is set forth in Ohio Revised Code
Sections 3121.89 through 3121.8911, while Florida’s is
found at Florida Statute 409.2576.
The primary objective of the
National Directory of New Hires is to increase national
child-support collections. The states match New Hire
Reports against their child-support records to locate
parents, establish a child-support order or enforce an
existing order. Other state programs are entitled to
utilize the data contained in the National Directory of
New Hires, including public assistance, unemployment and
workers’ compensation programs, to prevent paying
benefits to people who are, in fact, employed and
ineligible for such benefits.
What an employer is required to
report depends on the state. The minimum is set forth
in the federal law and requires the reporting of six
basic pieces of information – the name, address and
social security number of the employee, plus the name,
address and EIN number of the employer. Ohio adds two
additional required pieces of information – the date of
the employee’s birth and the date of hire. Florida
requires only the federal minimum, but provides for
optional reporting of the employee’s date of birth.
At least 14 states, including
Ohio (but not Florida), also have reporting requirements
for independent contractors as well as employees.
Indeed, Ohio defines an “employee” for purpose of
new-hire reporting as:
An individual who is employed to
provide services for compensation to an employer and
includes an individual who provides services to an
employer under a contract as an independent contractor
and who is an individual, the sole shareholder or a
corporation, or the sole member of a limited liability
company.
An employer need not have a
minimum number of employees to be subject to the
reporting requirements, and there are no exemptions.
The law applies to all employees, including maids,
nannies, and gardeners – any person who is an employee
for federal income tax withholding, or in states like
Ohio, even where the person is an independent
contractor.
Many states have made it easy to
fulfill the reporting requirements. The reports can be
filed by mail (within 20 days of the new hire), or
electronically (twice monthly). The electronic options
include transmitting magnetic media, direct electronic
transfer, and even through the state’s webpage.
Multistate employers have a
special opportunity. They have the option of reporting
all of their employees to a single state, regardless of
where the employee actually performs services. In
addition to administrative efficiency another advantage
of such single-state reporting is that the employer gets
to choose which state’s law it wishes to follow. In
fact, an employer can actually choose from among several
states (assuming the employer has at least one employee
in that state) which 1) require only the minimum
reporting required by federal law; 2) have no penalty
for failure to report; and 3) do not require the
reporting of independent contractors,. To take
advantage of this provision, however, the employer must
provide written notification to the United States
Department of Health and Human Services and all of the
states where it has employees, of the election to file
in a single state. Furthermore, the multistate employer
must file reports electronically (on the twice-monthly
schedule) to take advantage of this option.
Third-party payroll services will
often offer to provide new-hire reporting for employers,
and that can be a convenient option. Note however, that
payroll services cannot take advantage of the option of
reporting a multistate employer’s new hires to a single
state. Temporary agencies are responsible for reporting
any employee they hire for an assignment.
As can be imagined, the
information contained in the National Directory of New
Hires is quite extensive. By law, access to that data
is strictly controlled and limited to state and federal
agencies for specific purposes. The data is not
available to creditors or other private parties.
There are many resources available to employers seeking
to comply with the new-hire law, from websites to
printed materials and telephone hot lines. Many of the
forms required can be downloaded on-line. While it is
hoped that all BDB clients are complying with the law,
any employer with questions about how to comply with
new-hire-reporting requirements should contact a member
of the practice group.
_______________________________
Doug Paul
is a Shareholder in the Employment & Workers'
Compensation and Litigation Practice Groups. He can be contacted
at dpaul@bdblaw.com or
216.615.7340.
By
Jan
E. Hensel
 On
June 22, 2006, the United States Supreme Court issued an
important decision that clarifies what constitutes
unlawful retaliation under Title VII of the Civil Rights
Act of 1964. In the case of White v. Burlington
Industries, the court held that the Act’s
anti-retaliation provision forbids certain actions of
the employer that do not affect the “terms and
conditions” of employment. Furthermore, the
anti-retaliation provision also prohibits certain
actions that are not related to employment or occur in
the workplace. Instead, this provision forbids all
employer actions that would be materially adverse to a
reasonable employee or job applicant, if harmful to the
point that they could dissuade a reasonable worker from
making or supporting a charge of discrimination.
In the White case, the plaintiff, Sheila White,
alleged that after complaining of sexual harassment by
her supervisor, she was removed from her forklift duty
to standard track laborer tasks. Even though the duties
fell within the same job description, Ms. White
submitted evidence that the track laborer duties were
more arduous and dirtier than the forklift operator
position, and that the latter position was considered a
better job by male employees who resented White for
occupying it. In addition, she was subjected to a
37-day suspension without pay, although the suspension
was later rescinded and Ms. White received back pay.
The Court held that, even though the reassignment of
duties was within the same job description and Ms. White
suffered no reduction in pay, and she eventually was
reinstated with back pay and her suspension rescinded,
the actions were sufficiently adverse that they could
dissuade a reasonable employee from pursuing protected
activity.
The core anti-discrimination provision of Title VII
prohibits discrimination that affects an employee’s
“compensation, terms, or conditions of employment,” on
the basis of that person’s “race, color, sex or national
origin.” The Court noted that the language of that
section explicitly limits its scope to actions that
affect employment or alter the conditions in the
workplace. Thus, to establish illegal discrimination,
the employee must establish that the challenged action
resulted in an adverse effect on the terms, conditions
or benefits of employment.
The anti-retaliation provision is worded differently.
It states that it shall be an unlawful employment
practice for an employer “to discriminate” against an
employee or applicant because that individual “opposed
any practice” made unlawful by Title VII or “made a
charge, testified, assisted or participated in” a Title
VII proceeding or investigation. Prior to White,
the Circuit Courts had reached different conclusions
about whether the challenged action under the Act’s
anti-retaliation clause has to be employment or
workplace related and about how harmful that action must
be to constitute retaliation.
Several circuits, including the 6th Circuit,
which governs Ohio, had required a plaintiff claiming
retaliation to show an “adverse employment action,”
defined as a “materially adverse change in the terms and
conditions of employment” – the same showing required
for a claim of discrimination. In White, the
Supreme Court disagreed with this analysis. Because the
purpose of the anti-retaliation provision is to prevent
an employer from interfering with – through retaliation
– an employee’s efforts to secure enforcement of the
Act’s basic guarantees, limiting unlawful retaliation to
employment-related actions would not deter many forms
that effective retaliation can take. Citing two
examples of retaliation causing harm outside the
workplace – the FBI refusing to investigate death
threats against an agent and his wife, and the filing of
a false criminal charge against a former employee who
complained about discrimination – the Court held that
the provision’s purpose of ensuring that employees feel
free to approach appropriate officials with grievances
regarding violations of the Act would be thwarted if the
employer could avoid liability for such actions.
Thus, the Court held that employer prohibited activity
under the anti-retaliation provision of Title VII is
broader than under the anti-discrimination provision.
However, the Court emphasized that the anti-retaliation
provisions do not protect an individual from all
retaliation, but only retaliation that produces injury
or harm. Thus, a plaintiff must show that the
employer’s action would be considered to be materially
adverse by a reasonable employee and would dissuade a
reasonable worker from making or supporting a charge of
discrimination.
Exactly what actions may constitute retaliation will
have to be viewed in context. By way of example, the
Court stated that, while a schedule change may make
little difference to most employees, it “may matter
enormously to a young mother with school aged
children.” A supervisor’s refusal to invite a
subordinate to lunch is normally a trivial,
nonactionable slight. But excluding an employee from a
weekly training lunch that contributes significantly to
an employee’s professional advancement might constitute
illegal retaliation.
The White decision expands the scope of employer
activities that constitute illegal retaliation under
Title VII. Thus, employers must be diligent to ensure
that they take no “materially adverse” action against
employees who have engaged in protected activity. It is
important that employers educate all supervisors about
this new definition of retaliation. In addition,
employers should take this opportunity to review and
update their anti-retaliation policies and conduct
in-house training on the policy. It is now more
critical than ever that employees have an appropriate
mechanism for reporting acts of retaliation so that
employers can take the necessary steps to stop it.
_______________________________
Jan Hensel is a Shareholder and
Co-Chair in
the Employment & Workers' Compensation Practice Group.
She can be reached
at
jhensel@bdblaw.com or
614.227.4267.
Save
the Date for these Upcoming Presentations:
August 9
-
Denise A. Gary,
Kristina M. Harless,
Barbara A. Knapic,
Robert C. Meyer,
Tod T. Morrow, and
Mary E. Reynolds
(Buckingham
CantonSM)
will be presenting at a Lorman Education Services
seminar entitled, “Workers’ Compensation in Ohio.” It
will take place at the Sheraton Suites in Cuyahoga
Falls, Ohio.
September 21 and 29
-
Barbara A. Knapic
(Buckingham
CantonSM)
will be speaking at the Ohio State Bar Association’s
Advanced Workers’ Compensation Seminars. The first one
will take place in Columbus, Ohio. The second
presentation will be in Cleveland, Ohio. On December
18, Ms. Knapic will make a presentation at a
National Business Institute Advanced Workers’
Compensation Seminar.
Out and About - Recent Presentations:
Denise J. Bleau
(Buckingham
BocaSM)
presented at a Lorman
Education Services Seminar in West Palm Beach, Florida.
Her topic was "What You Need
to Know About Public Records and Open Meetings."
Ms. Bleau also presented to the American Woman’s Society
of Certified Public Accountants (AWSCPA), along with
Rana M. Gorzeck
(Buckingham
BocaSM).
The topic was “How a Hurricane or Other Natural Disaster
Will Affect Your Business Responsibilities to Your
Employees.”
Gerald B.
Chattman
(Buckingham
ClevelandSM)
spoke at the
National Business Institute Seminar called "The New Age
of Corporate Governance for Nonprofit Organizations."
Barbara A. Knapic
(Buckingham
CantonSM)
made a
presentation to the Ashland Chamber of Commerce Safety
Counsel at the Ashland Country Club. Her topic was
“Workers’ Compensation Claims - To Certify or Not to
Certify.”
Mary E. Reynolds
(Buckingham
CantonSM)
gave a presentation for the Basic Workers’ Compensation
OSBACLA Seminar regarding “The Hearing Process.”
Scott Topolski
(Buckingham
BocaSM)
presented at a NBI
Seminar in West Palm Beach, Florida. His topic was "Successfully Collecting Debts and
Judgments."
If you are interested in obtaining information on upcoming
seminars or would be interested in having speakers from
Buckingham, Doolittle & Burroughs, LLP make a
presentation to your organization, please contact: Lorna
Henderson, Client Relations Administrator
lhenderson@bdblaw.com or 800.686.2825 ext.
86473. |
