There is nothing like a gentle reminder or a “cheat sheet” to look at when counseling or disciplining employees. The key thing to remember is that although nothing can absolutely insulate you from claims of discrimination or wrongdoing, there are steps you can take to get to the ultimate goal of improving an employee’s performance or, alternatively, terminating an at-will employee when counseling and discipline haven’t facilitated acceptable improvement.
The U.S. Supreme Court’s 2013 decision in United States v. Windsor created a lot of uncertainty in federal employment benefits. Because the federal government’s definition of marriage as a union between one man and one woman was deemed unconstitutional, the decision left unanswered the question of when same-sex spouses were eligible for spousal benefits in a variety of contexts. In a move that is sure to simplify things for multistate employers, the U.S. Department of Labor (DOL) is taking steps to clarify that issue under the Family and Medical Leave Act (FMLA) with a new rule that goes into effect Friday.
The FMLA is a federal law that provides unpaid leave to employees who have worked for their employer for (1) at least 12 months and (2) at least 1,250 hours over the 12 months preceding a request for leave. Employees may take leave for a variety of reasons, including to care for a spouse with a serious health condition. Thus, a key consideration in determining FMLA leave eligibility is whether the person for whom an employee intends to provide care is a “spouse” under applicable law. The word “spouse” used to be defined by the Defense of Marriage Act (DOMA). However, DOMA’s definition of marriage was declared unconstitutional under the Windsor decision.
Reaction to Windsor
In the wake of the Windsor decision, the federal government was forced to come up with a new approach to federal benefits that affect spouses. Different agencies adopted different approaches, and sometimes different standards were applied to different laws administered by the same agency. For the FMLA, the DOL adopted the “state of residence” rule, which stated that if a same-sex couple’s marriage was not legal in the state where they lived, they were not entitled to FMLA leave to “care for a spouse.” So, for example, same-sex partners who lived in Pennsylvania and came to Delaware to get married in 2003 were not entitled to spousal leave benefits under the FMLA because their marriage was not recognized by the Commonwealth of Pennsylvania. (A federal judge in Pennsylvania struck down the state’s ban on same-sex marriage in 2014.)
It’s March, a time when employers find themselves dealing with office pools, college rivalries, and a tendency for sports fans to shift their attention from work to the college basketball national championship tournament. The distraction of the “big dance” can cause even the best employees to slack off as they follow games during the workday and compare notes with coworkers also preoccupied with tournament brackets.
If March Madness presents an employer’s only slacker problem, the human resources department and supervisors have it easy. It’s the year-round slackers that pose the bigger issue. Those are the employees who lose their way and don’t get back on track once the nets are cut down after the championship game. They’re the group Steve Albrecht, an author and manager of a training, coaching, and management consulting firm in San Diego, California, terms “smart slackers.”
In his 2015 State of the Union speech, President Barack Obama pressed Congress to “pass a law that makes sure a woman is paid the same as a man for doing the same work.” Although the president’s plea for the passage of stronger pay discrimination laws is unlikely to sway the Republican-controlled House and Senate, the federal enforcement agencies have been working behind the scenes to bolster existing laws.
One of my earliest cases involved a client who ran a livery service—with a fleet of luxury cars to drive passengers all over town. But neither his cars nor his drivers were properly licensed, and his vehicles were impounded and the drivers were arrested every time they hit the streets—such was the power of the medallioned taxi companies that controlled the streets of San Francisco. The police department made arrests, and the district attorney prosecuted with a fervor, pointing to the dangers to passengers of unregulated chauffeurs.
Think your employees are satisfied with their work-life balance? They may be, but a recent survey signals they may not be as satisfied as you think.
WorkplaceTrends.com, a human resources research portal, and CareerArc, a recruitment and outplacement firm, released their 2015 Workplace Flexibility Study in February. The survey of 1,087 professionals—both employed and those seeking employment—and 116 HR professionals found that 67 percent of the HR professionals think that their employees enjoy balanced lives. But the survey also found that significant numbers of the professionals—45 percent overall and 35 percent of the job seekers—feel their work doesn’t leave them enough time each week for personal activities.
For many sports fans, March means March Madness and hour upon glorious hour of college basketball. There’s a good chance that some of your employees are planning office pools, just waiting for Selection Sunday, the day the official brackets are released. While they view office pools and other office gambling as a harmless distraction from their typical duties, employers usually pay the price with decreased productivity and potential legal exposure.
Many employers interested in promoting a family-friendly workplace want to offer new moms and dads paid time off for parental leave. But they need to keep discrimination concerns in mind if they plan to offer moms more “parental” time than dads. Recently, a group of attorneys was asked about the legality of an employer’s idea to offer new moms 80 hours of paid leave while offering new dads just 40 hours of paid time. The attorneys advised the employer that it had better be careful.
“Parental leave must be provided equally to men and women,” Kaitlin L. Hillenbrand, an attorney with the Steptoe & Johnson PLLC law firm in Bridgeport, West Virginia, says. That doesn’t mean, however, that new moms can’t be offered more time off than men. Employers are within the law if they provide medical leave related to recovering from pregnancy and childbirth to just moms, but any leave designated for bonding with and caring for a child needs to be offered to men and women on equal terms.
by Kara E. Shea
One of the most common questions I hear from employers involves when they can or can’t dock employees’ paychecks. It’s very tempting to use an employee’s paycheck as a way to recoup losses you’ve incurred because of her actions, especially when, as a practical matter, there will never be any other way to collect the debt from her. However, you should exercise caution when docking an employee’s paycheck because federal and state laws limit the deductions that can legally be made.