Religion at Work: A Guide for Employers

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In 2013, there had been a number of charges filed by the Equal Employment Opportunity Commission (EEOC) involving religion in the workplace. As workplaces become more religiously diverse, it may be a good time for your organization to review its practices relative to the issue.

Religion as Defined by the Courts

Title VII of the Civil Rights Act prohibits religious discrimination in the workplace which includes hiring, firing, compensation, training, advancement, and other terms or conditions of employment.
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5-Step Checklist to Protect Against Sexual Harassment Liability

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5-Step Checklist to Protect Against Sexual Harassment Liability

Sexual harassment lawsuits continue to make up a large percentage of cases filed by the Equal Employment Opportunity Commission (EEOC) and many of the recent cases filed against employers. In addition, digital sexual harassment has become a more common form of sexual harassment through texting, email, and other electronic forms of communication.

Given these trends and that most sexual harassment lawsuits can extremely costly for employers, it's important to thoroughly understand the issue of sexual harassment and follow specific guidelines to stay compliant.
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FMLA Intermittent Leave: 3 Ways to Manage It

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intermittent leave what does intermittent leave mean intermittent fmla

Intermittent FMLA leave can be extremely challenging for employers to manage. Fortunately, there are opportunities in the FMLA process which allow you to carefully manage this type of leave more effectively. Here are 3 ways to manage intermittent FMLA leave’s major challenges.

1. Obtain a complete medical certification from the employee.

Employers have the right to ask that a request for FMLA leave is supported with a fully completed certification issued by a health care provider within 15 days after providing the employee with a written notice designating the leave as FMLA and explaining their rights and responsibilities. Certification is critical for intermittent leave, as the condition may sometimes not be a serious health condition. Certification for intermittent leave must include a statement of medical necessity of leave and the likely duration and frequency in episodes.
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Rarely Performed Duties Can Be Essential Functions Under ADA

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The outcome of a recent court case reminds employers that when determining the essential functions of the job, how frequently they are performed is just one factor that should be considered.

Case Overview

In the 2013 case Knutson v. Schwan Food Company, Knutson was a general manager for one of the organization's depots whose job description stated that a manager must meet federal Department of Transportation (DOT) requirements to be eligible to periodically drive a delivery truck.
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Employers Must Use New I-9 Form

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Beginning May 7, 2013, employers must use the revised Employment Eligibility Verification I-9 Form (Rev. 03/08/13)N for all new-hires and reverifications. Previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y may not be used as of May 7, 2013. 

The I-9 Form is required to verify the identity and employment authorization of individuals hired for employment in the United States and the new I-9 Form contains many improvements including new fields, reformatting, and clearer instructions. Though the actual USCIS requirement for retaining I-9 forms is to retain original forms for "three years after the date of hire, or one year after the date employment ends, whichever is later," employers must have a completed I-9 Form on file for every person in their organization and should keep these forms on file for an employee's entire length of employment and for a certain amount of time after their employees stop working at the organization as a best practice.
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USCIS Reaches 2014 H-1B Cap

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The U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year 2014.

The cap was reached within the first week of the filing period. USCIS has received more than 20,000 H-1B petitions filed on behalf of individuals exempt from the cap under the advanced degree exemption. The H-1B program is used by organizations to employ foreign workers in occupations requiring specialized expertise such as science, engineering, and computer programming.
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FMLA & Facebook: 6 New Lessons for Employers

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FMLA & Facebook: 6 New Lessons for Employers

Increasingly, Facebook and other social media postings are entering the courtroom as employers use them as evidence for taking adverse action against employees. Here are two cases regarding Facebook and the Family Medical Leave Act (FMLA) which serve as models for employers on this issue and offer six (6) important lessons.

Case Law Overview

Case #1

In Lineberry v. Detroit Medical Center, a federal district court ruled that an employer is entitled to fire an employee if they have an "honest belief" that he or she is abusing FMLA leave.

In the case, Carol Lineberry was employed by Detroit Medical Center as a Registered Nurse. She injured herself on-the-job when moving stretchers, was treated by her physician, and was told not to return to work. As a result, Lineberry received approved FMLA leave from her employer.

While on leave, Lineberry took a vacation to Mexico. The trip was approved by her physician who stated that the vacation would not conflict with her recovery nor would be as physically demanding as performing her job duties. During her vacation, however, Lineberry posted photos on Facebook suggesting that she misrepresented her need for FMLA. Her coworkers saw these postings and complained to Lineberry's supervisor.

When questioned, Lineberry informed her supervisor that she used a wheelchair during her travel, however during a subsequent disciplinary meeting, when reminded that airports have cameras, admitted to lying about using a wheelchair. As a result, Detroit Medical Center terminated Lineberry for dishonesty and falsifying information. Lineberry sued the hospital, alleging that it interfered with her FMLA rights and retaliated against her.

The court considered Lineberry's Facebook postings and dishonesty about the use of a wheelchair as facts which led Detroit Medical Center to reasonably believe that she had misused FMLA leave.

Case #2

A similar case, Jaszczyszyn v. Advantage Health Physician Network, involved Sara Jaszczyszyn, a customer service representative employed at Advantage Health Physician Network. Sara requested and obtained the appropriate medical certification for intermittent FMLA leave as a result of a car accident.

After receiving certification, Sara was absent for a continuous and open-ended length of time. While on FMLA leave, Sara posted pictures of herself at a festival, socializing and enjoying time with friends. Her coworkers viewed these pictures and complained to their boss. Sara was eventually terminated and filed a retaliation claim against Advantage Health Physician Network.

Sara's claim was dismissed by court, primarily because the organization was able to show that it had an honest belief that she was engaging in fraud and relied on facts in its decision to terminate her. Also, the organization conducted a complete and thorough investigation of the issue and inquired about the discrepancy between her claim and Facebook photos.

Employer Takeaways

These two cases have some important implications for employers in terms of managing social media postings and FMLA leave, specifically:

  1. Social media postings may be legitimate evidence, coupled with other relevant facts and evidence from many different sources, to aid in an investigation and substantiate that an employee is abusing or misusing FMLA leave.
  2. Coworker complaints or reports about behavior on Facebook and other social media websites can be taken seriously and may prompt further investigation.
  3. Employers are permitted to properly investigate an employee's FMLA leave if they suspect that an employee is violating the terms of their leave.
  4. It's important to follow your disciplinary policy and procedure. These organizations remained compliant and consistent with their disciplinary policies and procedures, and took steps to obtain the appropriate information prior to terminating the employees.
  5. Organizations should obtain the appropriate information about an employee's medical restrictions under FMLA before taking adverse action on an employee.
  6. Employers should focus on responding to complaints about Facebook and other social media behavior, rather than routinely "spying" on employees' Facebook profiles and social media behavior.

There will undoubtedly be much more case law to glean insights from as Facebook and other social media postings make their way into the courtroom. As these cases unfold, employers should use them as models and lessons for how to manage FMLA and other employment laws.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

FMLA Administration & Services: ERC's Preferred Partner, CareWorks, provides ERC members with discounts on services related to day to day management, tracking, and overall administration of FMLA. CareWorks' approach is outcome-based, streamlined, and cost-effective, and ensures that claims are handled consistently and in compliance with state and federal laws. 

Employment Law Fundamentals: This seminar is designed to provide managers and supervisors with an overview of relevant employment law considerations and to support a proactive, positive work environment. Presented in an interactive style, this seminar can be customized to specific topic areas desired by the employer.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

Social Media Policies Guide Employees and Protect Companies

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Your employees use social media.

It’s a safe assumption to make—almost 70% of internet users use social media. And because your workers are using social media, it’s crucial that you supply a social media policy.

Why do social media policies matter?

Social media policies establish guidelines for how your employees use social media. These policies outline what is and is not appropriate for employees to post on social media outlets, including Facebook, Twitter, Instagram, Google+, and other related platforms.

Successful social media policies:

  • Offer guidance to employees.
  • Protect companies.
  • Are clear and straight-forward.
  • Are easy to understand easy to use.

An effective policy will inform employees of the boundaries of acceptable posting. It should encourage employees to avail themselves of social media, both independently and as an employee.
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Important Legal Updates: I-9, FMLA, HIPAA, & H-1B Petitions

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New I-9 Form

U.S. Citizenship and Immigration Services (USCIS) has released a revised Employment Eligibility Verification I-9 Form which contains many improvements including new fields, reformatting, and clearer instructions for 2013. Employers should begin using this I-9 form (effective date: March 8, 2013), however previous versions of the form may be used until May 7, 2013.

I-9 Form
Handbook for Employers: Guidance for Completing Form I-9

FMLA Changes

Important updates to the Family Medical Leave Act (FMLA) went into effect on March 8, 2013. These updates included expanded protections for veterans and exigency leave as well as modified rules for airline personnel and flight crews.
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New I-9 Form Available

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U.S. Citizenship and Immigration Services (USCIS) has released a 2013 revised Employment Eligibility Verification I-9 Form, in both English and Spanish versions, for employers. The Department of Homeland Security has also issued a Notice about the new I-9 Form in the Federal Register. 

According to USCIS, effective March 8, 2013, employers should begin using the new I-9 Form (Rev. 03/08/13)N for all new-hires and reverifications, however, the previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y may continue to be used until May 7, 2013. After May 7, 2013, however, employers must only use Form I-9 (Rev. 03/08/13)N.

The I-9 Form is required to verify the identity and employment authorization of individuals hired for employment in the United States and the 2013 I-9 Form contains many improvements including new fields, reformatting, and clearer instructions.

Download the 2013 I-9 Form

Source: USCIS