Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

• Most private sector employers are required to post a notice about employee rights under the National Labor Relations Act.  If you are not up-to-date on this posting’s requirement, go to:
  • A Small Poster Could Have A Big Impact
  • NLRB Extends Poster’s Debut Until January 2012
  • All Employers Must Post NLRB Notice – Are You And Your Supervisors Ready?

 This poster is available to download here.

Legal challenges to the poster are pending in court, but for now, employers are required to comply by January 31.

• If you have employees in Connecticut, you may have to comply with the new Connecticut Paid Sick Leave law beginning January 1.  The law is the first state legislation in the United States to entitle certain employees to paid sick leave, and you may need to implement new record-keeping policies to ensure you are calculating accrual, use, and carryover correctly.  To learn more about the law, go to:
  • Connecticut Paid Sick Leave – Who Qualifies?
  • Connecticut First In The Nation To Provide Paid Sick Leave
  • Why Connecticut Employers Need To Ask Employees: “Are You Sick?”

 Minimum wage laws in seven states are set to increase January 1.  In addition, San Francisco passed an ordinance requiring workers to be paid at least $10.24 per hour – the highest minimum wage in the United States.  Read up on the new minimum wage here.

Looking ahead to 2013, consider how your business will implement the new provisions of the federal health care legislation.  For example, you will need to report the cost of 2012 coverage under a group health plan on W2s you issue in 2013.  You can learn more about the new provisions go to: One Year Later Health Care Legislations’ Constitutionality Still Unresolved and The Escalating Battle Over Healthcare Legislation.

December is a great time to review your policies and make sure you are complying with all applicable federal, state, and local laws.  Resolve to keep up with changes in the law that could affect your workplace.  You can avoid costly mistakes by regularly reviewing and updating your policies in light of new developments. 

Brody and Associates regularly drafts and reviews employment policies and handbooks for employers in all industries.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Illegal Drugs under the ADA

Under the ADA, marijuana is an illegal drug.  Courts have generally found that medical marijuana use alone is not protected by the ADA.  However, some scholars believe that there is a carve-out in the ADA for medical marijuana use.  The exception they point to is for a drug which is taken “under supervision of a licensed healthcare professional.”  This particular issue has yet to be litigated. 

Reasonable Accommodations under the ADA

If you are considering providing a medical marijuana user with a reasonable accommodation, what would it be? 

• Perhaps you provide them with a week’s warning that you will be performing a (not so) random drug test on employees.  This will allow the employee to stop using the medical marijuana for a few days to allow them to test negative.  This seems impractical and possibly hard for the employee to comply since the drug use in medically necessary. 
• Another idea involves exempting the employee from the ‘byproducts’ section of a drug test.  Marijuana’s byproduct is called THC, and that is what shows up on a positive drug test for marijuana users.  Most other drugs do not show up as ‘byproducts’ on a drug test, so the employee would not be exempt from other illegal drug use. 
• In addition, you could have a more sophisticated drug test which measures the levels of THC, telling you whether the employee smoked marijuana during work time, or off work time. 

 Drug-Free Workplace Policies

If you are a drug-free workplace, you do have the right to fire employees for their drug use in most states, regardless of their status as a legal medical marijuana user.

While you may not be legally required to make accommodations or ignore an employee’s medical marijuana use, it may be a best practice to take their usage into consideration and attempt to accommodate them to the best of your ability.  Since these issues have not seen much litigation, you do not want to become the test case.  Thus, a reasonable approach is important.  Hopefully states will issue more guidance in the near future to aide employers. 

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Maybe the largest problem is that many employers struggle to implement an effective workplace violence program.  OSHA recently issued a new guide which includes not only enforcement procedures for its investigators, but helpful tools and tips for employers to assess their workplaces and implement workplace violence prevention strategies.  The guide even gives industry-specific tips for industries such as retail, healthcare and social services.    

Some general tips for all employers include:

• Have a well drafted workplace violence prevention policy in your handbook
• Install an alarm system in your building, especially if you often have employees staying late by themselves
• Require everyone entering or exiting the building to swipe a company-issued badge or otherwise register with the company
• Install bright lighting in the parking lots and other outdoor areas
• Encourage your employees to report all threats and incidents of violence in the workplace

With just a few small steps, employers can maintain a safe environment for their employees.  Brody and Associates regularly advises its clients on matters involving OSHA and OSHA compliance.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

 Have a set policy on internet usage in the workplace and enforce the policy equally.

• Prohibit office pools, as these promote illegal sports gambling.
• If you find your employees spending more time discussing which wide receiver they should pick up for their fantasy team than their latest sales meeting, encourage them to discuss sports during lunchtime or after work.  

Employers should have a policy put in place to address these issues, and supervisors should be trained to enforce those policies evenhandedly.  There is nothing wrong with occasional banter about sports and fantasy teams in the office and in fact this encourages a positive work environment.  You just need to be sure that it does not consume your employees and prevent them from doing their jobs.

• Have you figured out who in your business is an employee and who is an independent contractor?
• Once you figure out who the employees are, do you know who is exempt from overtime and who is not?
• Are you making sure nonexempt employees are being paid for all hours worked even if they are not working?   

Remember, if a nonexempt employee sits at his desk to take his lunch break, but his supervisor asks him to watch the phones, even if the phone never rings, you still should have paid him for that time.  It is little situations such as this which can create overtime obligations which add up to huge back pay awards.  So take time this month to assess your pay practices and make sure your policies are in order before the fall comes around and we all get busy again.

You should encourage your employees to take all their accrued days off each year.  One way to do this is to institute a “use it or lose it” approach, where employees cannot carry over days to the next year and will not get paid for any unused days upon discharge.  If you do this, you must explain the rationale or you may look unreasonable.  Also, track vacation use throughout the year and give your employees a progress report halfway through the year so they know you truly want them to take a break.  You should remain as flexible as possible in allowing the employee their requested days off and even go so far as to suggest employees take time off when you are slow.  By creating a work culture where vacation is seen as a positive investment in the employees, both employers and employees will benefit.  Also, your company will have one more reason why the public sees your company as the employer of choice in your community or industry. 

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

1. Develop a social media policy.  Given the prevalence of social media, this is an absolute must.  But with the National Labor Relations Board scrutinizing policies in search of labor violations, employers should have their policies drafted or reviewed by qualified labor and employment counsel to ensure compliance.
2. Train management to spot social media issues.  Often supervisors don’t know what to do when they hear about an employee’s embarrassing off-duty, on-line conduct.  Many may think, “it didn’t happen at the company, so it’s none of my business.”  Other supervisors, in an attempt to be a company hero, may engage in inappropriate (or even illegal) attempts to investigate the employee’s actions (e.g., impersonating a friend to gain access to the offending post).  Training supervisors and managers to be aware of what’s going on and to respond appropriately is crucial to minimizing a scandal and avoiding allegations of company misconduct.
3. Consider contract language for high-profile employees.  Many executives and other high-profile employees have employment agreements which allow for termination or forfeiture of benefits in the event of workplace misconduct.  However, their agreements often don’t address off-duty, but equally damaging, activities.  Since many of the concerns applicable to company-wide social media policies don’t apply to agreements with management-level employees, you should consider including a provision addressing on-line or other off-duty misconduct.  Obviously, you should consult your labor and employment counsel to help draft such language.

While you may have a Weiner at work, by being proactive, you can keep him (or her) from embarrassing you and tarnishing your company’s image.

Brody and Associates regularly advises management on complying with state and federal employment laws including privacy laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

• Make the event voluntary – This will avoid possible workers’ compensation claims for injuries during the event, as some states have held mandatory attendance at an employer sponsored recreational event places injuries within the course of employment. 
• Hold the event at an off-site location – This also helps shift the potential liability of a workers’ compensation claim.
• Consider not serving alcohol – While many adults feel that picnics and cold beer go hand in hand, cold lemonade may be the better option for your company event.  Many states allow third parties who are injured by intoxicated individuals to sue the host who served the alcohol.  This can mean serious liability for any accidents which occur as a result of an intoxicated employee’s mistakes.  
• Be sure to supervise – Just because everyone is off the clock does not mean that a member of management should not be designated to oversee the event.  This can remind employees that unruly behavior will not be tolerated especially when it involves illegal harassment.

Company events are great employee relations tools.  They can boost morale and show employees that you want them to enjoy working with you.  By following these simple steps, employers can ensure the fun memories are not erased by memories of lawsuits.   

Brody and Associates regularly advises management on complying with state and federal employment laws.  Every year or so, we remind employers of seasonal issues like this.  If you would like to read a slightly more in depth analysis of this issue, please click here.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

However, as we see the economy slowly start to gain upward momentum, employers should be mindful of how they can keep competitive.  If the job market starts to pick up in your industry, employees will suddenly have more options.  If they see other companies giving raises, and not their own, they may be enticed to move elsewhere.  You do not want to be the last employer in your area or industry to make improvements, or you may lose your best talent. 

In the next few months, employers should assess how they can reestablish themselves as a good, preferred employer.  This may include offering new training opportunities, increasing employee benefits, or giving spring bonuses or raises to deserving employees.  Also, it makes sense to assess old policies that may not be practical for your workforce or are not creating a positive workplace atmosphere.  A few small changes in your company can transform employee attitudes and make your company a choice employer.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.