WorkSource Blog

Are companies required to give time off for Religious Observances?

It’s important to know what accommodations you’re legally required to make when employees request time off work for religious purposes/observations.  This is a very sensitive issue which can bring much controversy.  Yet if you are prepared and know your company’s policies/procedures you will be much less likely to put your organization at risk.  

One of the biggest conflicts occurs when an employee wants to take time off and potential productivity and profitability is compromised.  Title VII states that an employer must provide “reasonable accommodation” of an employee’s religious beliefs and practices.  Under Title VII, an employer can’t refuse to reasonably accommodate an employee’s religious observances, unless accommodation would constitute an “undue hardship” for the company.  According to trial attorney Jeffrey Steinberger (senior partner of The Law Offices of Jeffrey W. Steinberger), when making a decision regarding “reasonably accommodations,” note the following:

1. An employee must first notify the employer of the conflict between his or her religious belief and an employment requirement.  Without proper notification, an employer can legally discharge an employee for excessive absences, even if it’s later determined that the absences were for religious purposes.
2. Recent court cases have ruled in favor of employers when employees requested preferential treatment in regards to taking time off to observe the Sabbath.  The courts have found undue hardship to the employer because of morale problems with the employees that had to work on Saturdays, as well as employers having to pay higher wages to fill the employee’s vacancy.
3. Employees have had more success in cases involving special leave to observe holy days or attend religious activities that weren’t regular and frequent., However, even a single absence can cause an employer undue hardship.  For example, if the employee is the only one who can perform an essential job to continue business operations, an argument of “undue hardship” could be made.
4. In ruling on Title VII religion cases, the courts have held that employers aren’t required to accommodate employees’ religious activities when it involves increased financial costs, transferring supervisory personnel or employees from other departments resulting in inefficiency, or discriminating against other employees or violating seniority systems.
5. Examples of accommodations that don’t constitute undue hardship:  flexible work schedules, voluntary substitutions, floating or optional holidays, staggered work hours, and allowing employees to make up lost time.
6. While technically not required, companies should always offer accommodation suggestions before claiming undue hardship.  If no suggestions are made, the employer must be able to prove there was no possible accommodation.
7. Consult expert legal counsel to achieve a successful resolution when the employer and employee can’t agree.

How can a hiring checklist help my company?

Sometimes it’s easy, especially when busy, to shorten your hiring process as you’re bringing on new employees.  This is a very risky practice, however.  Give every manager clear hiring procedures to follow for each new open position.  Checklists can be a valuable tool for managers or HR Professionals to keep track of all that needs to be done consistently.  A South Carolina hospital found out the hard way they should have utilized consistent hiring practices when one of their employees applied for a promotion.

For nearly two years Joyce Dennis worked jobs that progressively added more responsibility.  She finally interviewed for a promotion to ER registration supervisor.  The hiring manager suggested she wouldn’t get the position, however, due to rumors that she was having an affair with a doctor.  Dennis denied the affair and complained to the CFO.

In response, the CFO took over the hiring for the position.  He reviewed Dennis’ application but failed to interview her.  He ended up hiring a friend’s husband.

 Dennis quit and filed suit, alleging discriminatory failure to promote, as well as defamation.  A jury sided with Dennis and awarded her $161,000 in damages.  A federal appeals court upheld the ruling, describing the hiring process as “peculiarly informal.”  Dennis didn’t possess all the skills/requirements in the written job description, yet the man who got the job was even less qualified.  (Dennis Medical Center v. Columbia Colleton Inc., No 01-1338, rth Cir.)

How valid are Verbal Safety Warnings?

A verbal warning is not necessarily sufficient as a disciplinary action if an employee is known to have violated a safety policy or practice.  Look at how OSHA cited and the court ruled in a case involving the death of a New York bridge worker.

When a New York bridge worker took a fall that resulted in his death, OSHA cited the employer with a serious-violation fine.  The company appealed, saying it provided the correct harness, but the employee failed to use it.  He even ignored supervisors who yelled at him about it.  The court upheld the fine, however, arguing that oral warnings alone aren’t sufficient for enforcing important safety rules.  The company had a progressive discipline plan for safety violations yet the supervisors didn’t follow it.  According to the court, the company certainly should have.

(Secretary of Labor v. Skanska Koch Inc.)

This is certainly reason to pause when employees fail to follow safety rules.

How important are Background Checks?

Thorough screening of applicants is an essential part of HR Professionals’ responsibilities.  Making a “bad hire” because due diligence wasn’t followed can be very costly – not only financially – but in hours spent training and potential workplace ramifications that can affect the entire businesses’ workforce. 

Performing background checks allows a deeper look into an applicant’s history, thereby assisting in making sound hiring decisions.  It is important to conduct criminal background checks to verify information provided by an applicant; to help reduce the threat of workplace violence; to reduce potential negligent hiring decisions and the legal consequences associated with them; and to demonstrate a responsible hiring process. In this day and age, with the unpredictable world we live in, background checks are becoming a more and more common step in the hiring process.

Keep in mind that if something is found in the criminal records check, it does not necessarily mean that the applicant should not be hired, however, especially if the person is qualified in every other way.  To bar employment for every applicant who has a criminal record can be considered a form of discrimination.  An employer may, however, deny employment if it can be justified as a company-related reason or if the applicant lied in the application process.

There are several components to conducting a criminal background check:

•  Ensure the applicant completes a background authorization consent form.  It is recommended that this form be a part of the hiring packet that every applicant completes. 
• A criminal records check may be completed after the applicant signs the consent form
• Commonly, a criminal check will provide the following information:  the person’s name, any aliases used, the applicant’s gender and race, their date of birth, any offenses and their dates, place of residence for the past seven years, and any dispositions or convictions and their dates
• The information from these searches can come from databases that include county and state criminal court records, federal fugitive files, state Department of Corrections (DOC) files, prison parole records, and sex offender databases.  Each of these databases can provide different pieces of information on different levels.
• There are many available vendors that provide a variety of background check types.  Determine what your background check needs are so you can select a supplier and package that suits your company requirements.

Should my company have a Social Media policy?

It’s a great idea to draft a company policy on employee Social Media usage.  Many employees are posting or tweeting about their companies on Twitter, Facebook and other social media sites, creating negative business images and actually, in some cases, putting companies at risk.   

Even if employees are logging in on their personal computers at home companies can still impose certain policies regarding proprietary information, types of postings and disclaimers.

You don’t want to find yourself like this North Carolina Domino’s pizza: An employee stuffed a piece of cheese up his nose and then placed it on a sandwich to be delivered to a customer.  A co-worker who observed the incident posted the video on You Tube.  More than half a million hits later the health department showed up on Domino’s doorstep and the company had a massive PR nightmare.

So, as Domino’s learned, there is power in social media – and power amongst those who use it, even when harm is unintentional or postings are “for fun.”  So it is prudent to have policies and procedures that protect your company from the potential ramifications of social networking.

The following guidelines for drafting a policy on employees’ use of Twitter, Facebook or other social media tools are derived from a Society for Human Resource Management report: 

1. Don’t let personal use of twitter or other social networking sites interfere with work.
2. Employees must get company approval to use Twitter to conduct business.  (Note:  This isn’t far-fetched.  Many organizations have successfully incorporated Twitter into their marketing strategies)
3. Any use of the organization’s name, trademarks, logos or other intellectual property must be approved.
4. If employees make personal comments about any aspect of the organization’s business, their profiles must carry a disclaimer that the views expressed are their own, and not the organization’s.
5. Tweets may not disclose confidential or proprietary information.
6. Employees should use common sense about what they post,

Do I need to review I-9′s after they have been completed?

There’s been a lot of noise lately regarding immigration legislation.  Perhaps this has prompted your company to review I-9’s to ensure they’re completed properly and self-audited at least annually.

 Form I-9 may well likely be more important than many business owners or HR professionals realize.  Improper, incomplete or missing I-9’s can rack up large fines assessed by the federal government. 

“Businesses need to understand that the integrity of their employment records is just as important as the integrity of their tax records or banking files,” says Chicago-based ICE (Immigration and Customs Enforcement) spokeswoman Gail Montennegro.  

So be on your toes where I-9’s are concerned.  Make sure your company is accurately completing its portion of the form and the employee is completing his/her section.

According to ICE, I-9 audits “are one of the most powerful tools the federal government has to enforce employment and immigration laws.”  Last summer an ICE news release announced an accelerated audit program to hold employers accountable for their hiring practices and ensure a legal work force. 

Last July ICE issued a Notice of Inspection of hiring records to 652 businesses nationwide.  Maybe that doesn’t seem like a lot in the big scheme of things, yet 652 records is more than ICE issued for the entire previous fiscal year. 

The 652 businesses weren’t chosen randomly, either.  The selection process typically begins with “investigative leads or intelligence we might gather,” according to Montenegro.

Be aware that tips may come from former employees.  For example, “An anonymous phone call that a specific landscaping company or restaurant has undocumented workers (will catch ICE’s attention).”

ICE has two priorities when considering potential undocumented workers:  “egregious employers that are mistreating their work force” and “a critical infrastructure nexus” (i.e. an airport)

Should my company have an Emergency Action Plan?

Every company should employ an Emergency Action Plan (EAP) to provide the safest work environment possible.  Tornado season is a definite cause of concern, yet there are many other disasters that can occur while employees are in the workplace, as well:  bomb threats, fires, etc.

An EAP details the actions employees should follow to ensure their safety when an emergency situation occurs.  Disasters require specific plans according to the threat at hand, therefore pertinent procedures should be identified for each potential crisis.

A good EAP will include instructions on when and how employees should respond to various disasters.  At a minimum, an EAP must contain these sections:

Procedures for reporting emergencies, such as dialing “911” or an in-house emergency number, pulling the fire alarm, etc.

1. A description of the alarm system that directs employees to evacuate or take shelter
2. Evacuation policies, procedures and emergency escape routes, outlining who is authorized to order evacuations and what conditions would necessitate evacuations.
3. Procedures to account for employees after the evacuation.  For example, gathering at a specific location so a head-count can be done via checklist or some other acceptable method.
4. Clear assignment of specific tasks, such as first-aid, rescue, accounting for all employees, etc., to supervisors or other personnel,
5. An employee disaster training program and/or conducting emergency drills.  This should allow for employees to give their input regarding existing plans, procedures, etc.

 For additional information visit the Federal emergency Management Administration web site at www.fema.gov/plan/ehp/response.shtm

Are exempt employees eligible for OT pay?

HR Professionals should all be up-to-date with revised Fair Labor Standards Act (FLSA) measures.  For example, it’s imperative to know which white-collar employees are eligible for overtime pay.

You would think the rules would clarify everything, but lawsuits surrounding this matter are popping up and actually on the increase.  The biggest issue is companies incorrectly classifying “exempt employees” who are not eligible for overtime, and “non-exempt” employees who are eligible.

Under the new overtime rules, white-collar employees who earn less than $455 per week ($23,660 annually) are automatically eligible for overtime pay.  Those who earn more than $100,000 and perform at least one of the defined “exempt” duties are ineligible. 

For employees whose salaries lie between those two parameters, companies must analyze their job duties to determine if they fall into one of the following five exemption categories:  executive, professional, administrative, outside sales or computer employee.

By doing this you could actually end up paying out more overtime to lower paying professional workers.  But, it’s the law.   Also, remember to make the exempt/non-exempt decision based on employees’ job duties, opposed to their title.

 If an employee’s status changes, reclassify that person immediately.  If an employee’s wages lie slightly below $23,660 annually, assess if your payroll costs are best controlled by simply raising that person’s salary above that threshold to retain his/her exempt status.  This is effective as long as the person still meets the job duties guidelines.

Also, review and follow your employee job descriptions.  Remember, make the exempt/non-exempt decision based on employees’ duties, not their titles.

Should I deny a Doctor’s Appointment?

If an employee comes to you, requesting FMLA time off to investigate a “possible” serious illness, don’t be too quick to deny.  A new court ruling, Baucum v. Cabarus Eye Center, sided with the employee, stating that a doctor’s visit to obtain test results to determine whether a serious health condition exists can be covered by FMLA.

Baucum was faced with either having to cancel her doctor appointment to investigate mysterious growths on her cervix or be fired, as she had no PTO to withdraw from.  When Baucum requested FMLA leave her company denied it because she didn’t suffer from a qualifying “serious health condition.”  Their reasoning was that Baucum had not been previously incapacitated or sick for at least three consecutive calendar days, as FMLA rules require.

Baucum kept her appointment and was fired.  Therefore, she sued, saying she was entitled to use FMLA time for medical testing.  When the jury decided the case, Baucum prevailed.  The lesson here:  don’t be too quick to terminate an employee with a health condition.  Be certain to thoroughly review the case before coming to a decision.  And it’s always wise to consult legal advice when dealing with any type of medical issue

If you’re a time sheet approver who signs off on time sheets, read on!  Do you realize if you sign off on alterations to the hours reported by an employee you can be held personally liable?  The company you work for can also be held liable, but your personal assets can be up for grabs, too. 

The Fair Labor Standards Act allows employees to sue their bosses, executives and HR professionals for personal liability for altering pay records.  Because of this, make sure supervisors don’t accept off-the-clock work or time record alterations.  For example, according to “HR Specialist Employment Law” March, 2010 issue, U.S. Department of Labor officials announced last year that they’re receiving more complaints about employees forced to work through breaks. 

When an employee is on an-paid break, he/she must be free from all work duties.  That’s good reason to have a break room where employees can eat their lunches completely away from their desks/work stations.  You put yourself and your company at risk when you don’t pay an employee for all time worked, including “breaks” where the employee actually still assumes some job responsibilities (such as answering the phone).

Employees who worked at a group home as “living assistants” were recently awarded

$500,000 – which the court held the CEO personally liable for.  He and the company were ordered to pay the damages, including a $155,000 penalty.  This was the result of timesheets indicating the workers were given two 4-hour breaks during 48 hour weekend shifts, when, in fact, they had to check on each resident every two hours  Eight hours were deducted from their timesheets which the CEO signed off on.   (Chao v. SelfPride, No 06-1203, 4^th Cir.)