Hiring should focus on the applicant’s qualifications, not pregnancy, child care, or other family issues.

Assumptions and stereotypes are dangerous.  Not all women take on caregiving roles at home.  Nor do men necessarily lack caregiving responsibilities.  Avoid sex discrimination claims by recognizing the individual needs of your employees.

Parental status is a protected class under many state laws.  Have you checked yours?

Pregnancy is a protected status under federal law and many state laws.  Pregnancy-related disabilities are covered by the Americans with Disabilities Act.

You should be aware of all the state and federal laws that deal with caregiving responsibilities, often indirectly.  For example, Connecticut’s new medical marijuana law prohibits discrimination against certain caregivers and its new sick leave law allows time off to care for a parent, spouse, or child.  The Americans with Disabilities Act prohibits discrimination against individuals who are associated with a person with a disability.

Men can bring sex discrimination claims when they do not receive the same benefits as women for caregiving issues.

Over half of married mothers with children under age 6 are employed.

The Fair Labor Standards Act was recently amended to provide breastfeeding breaks for nursing mothers.

HR Audits should be used to reveal disparities you did not realize existed.  Consider whether employees with caregiving responsibilities are being hired, promoted, and paid on par with other employees.

Employees who have sued for issues related to family responsibilities have a higher success rate in court than employees who sue for most other employment issues.

Review your employee handbook with an eye toward disability and leave policies.  Make sure they are written and implemented in a non-discriminatory manner.

Single people have complained about the scheduling flexibility employers have given to married workers to handle family responsibilities, but this has not evolved into a significant legal concern for employers.  Nonetheless, to boost morale among all employees, consider that single people may have caregiving responsibilities not covered by your policies (e.g. for an elderly aunt or a disabled neighbor) or that they may be resentful of being asked to take on extra responsibilities due to family responsibilities of others. 

Daycare costs are one of the top reasons parents choose not to return to work after the birth of a child.  Some companies provide on-site daycare or discount vouchers as a way to retain their employees.

Assessing employees by results rather than “face time” helps provide flexibility, while holding all employees accountable for their output.

Your obligation under the Family and Medical Leave Act to allow leave to care for a child extends to employees who act as parents, even if they are not the child’s actual parents.  Examples are grandparents caring for grandchildren or Opie’s Aunt Bee from The Andy Griffith Show.

Brody and Associates regularly advises management on complying with the latest 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.

Need to brush up on your state and federal posting requirements?  Dust off the box of thumbtacks and click here.

 Brody and Associates regularly advises management on complying with the latest 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. 

Many, many companies fail to follow the rules on internships, often out of ignorance.  For decades, these illegal internships have largely been ignored by the government.  But the Obama Administration is the administration of enforcement, and the Department of Labor has begun cracking down on unpaid internships.

If your company is for profit, there are six criteria for hiring unpaid interns:

1. The intern must receive training and the training  is similar to what would be given in a vocational school or academic educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close observation;
4. The employer derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;
5.  The trainees are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

Merely offering educational credit is not enough, although some states require educational credit as an additional criterion for an internship to be unpaid.

Even non-profit organizations can be liable for failing to pay interns.  Unpaid internships at non-profits are generally permissible, but the intern cannot displace paid employees and the intern must know he or she will not be paid.  Offering any compensation, such as stipends, may transform the intern into an employee entitled to minimum wage and overtime, so be consistent in your treatment of the intern as a volunteer.

Now is the time to consider whether your internship program meets state and federal criteria.  If it does not, you must pay your intern or redesign the program.  Even if your company or your industry has always used unpaid interns before, you must independently assess whether your internship program meets with state and federal criteria to be unpaid. 

Brody and Associates regularly advises management on complying with the latest 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

2. “Should you?” Employers must focus on more than just the legality of their actions. A good business decision also makes financial, ethical, and reputational sense. If employees feel an action was unfair, they may sue and cost the company legal expenses, even though the action was lawful. Winning in court still costs money. Many a baseless case are settled to avoid lost time and legal fees. Moreover, if the public feels an action was unfair, they may boycott the company and turn the issue into a national human interest story.

Businesses cannot ensure that every decision they make is a popular one, nor should they all be. But increasingly, the public is using both traditional media and social media to express their views on business decisions. Asking that critical second question can save employers from experiencing an unexpected public relations nightmare.

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.

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 aid 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.