By: Elaina Smiley
The New Year is a good time for employers to review and update their employment practices. Proper policies and practices will reduce the risks of costly employment claims. Here are some items to review:
1. Review Drug Testing Procedures.
In April 2016, Pennsylvania legalized medical marijuana. Pennsylvania law prohibits discrimination and retaliation based on an employee’s medical marijuana cardholder status, but does not require employers to accommodate marijuana use while an employee is working. Employers must be careful when conducting drug tests to ensure that the testing facility is taking into consideration an employee’s legal medical marijuana use. An employer may prohibit employees who are prescribed medical marijuana from performing certain employment duties which are deemed to be life-threatening or a public health or safety risk. Employers should be cautious when making adverse employment decisions based on an employee’s valid medical marijuana use.
2. Review Job Duties for Salaried-Exempt Employees.
It is a good idea to review the actual job duties performed by those employees classified as exempt from the payment of overtime. The Fair Labor Standards Act (FLSA) contains a two part test for an employee to be considered exempt and employees must meet bothtests: 1) payment of a fixed salary and 2) meeting the duties of one of the Department of Labor exemption categories. Misclassifying an employee as exempt when the employee should be paid overtime can be very costly. In cases involving FLSA violations, employees can get up to 3 years of back wages (overtime that was not paid) plus double damages and attorneys’ fees.
3. Review Pay Practices for Hourly Employees.
Employers need to ensure that hourly employees are paid for all work time, which can include certain travel time, training and short breaks. Furthermore, employers should be cautious when paying hourly employees bonuses. Certain bonus payments that are classified as non-discretionary must be considered in calculating an employee’s overtime rate and additional overtime payments need to be made for the period for which the bonus was applicable. “Comp time” is not permitted in lieu of paying hourly employees overtime for hours worked in excess of 40 per work week.
4. Review Policies and Procedures on Discrimination, Harassment, and Retaliation.
Every employer should publish and distribute policies forbidding all forms of harassment, discrimination and retaliation against employees who report these issues. Harassment and discrimination should be barred not only based on sex, but other protected characteristics such as race, religion, age (40 and older), disability, sexual orientation, pregnancy and national origin. It is important to have more than one person designated as receiving reports of harassment, in the event an employee has a complaint against a person designated to receive complaints.
5. Review Management Training on Handling Employee Reports and Requests.
Often managers are not trained on how to handle employee complaints of discrimination, harassment or requests involving disability or leave. When an employee makes a report or complaint of unlawful harassment to a manager, knowledge of the harassment is imputed to the employer even if the manager to whom the report was made fails to report it further or to take appropriate action. An employer will not be able to successfully defend a harassment claim if the employer does not take prompt and effective remedial action in response to such report. Also, managers need to properly handle employee accommodation requests under the Americans with Disability Act and employee leave requests under the Family and Medical Leave Act.
For more information or to schedule an audit of your current human resources policies, please contact Elaina Smiley or any other Meyer, Unkovic & Scott Employment Law Group attorney with whom you have worked. Links to contact information are included below.
This material is for informational purposes only. It is not and should not be solely relied on as legal advice in dealing with any specific situation.