FALL 2012

H u m a nResourcesNewsletter

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BOP

BENT ON PE

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Bent Ericksen & Associates

Best Practices for Employer Sponsored Events

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Q: We have an overwhelming amount of job applications and resumes, most of which are from people who aren’t qualified for a job with us. Can we toss these? Or, are we required to keep them?

Q + A

ANSWER: You can toss them, but only after you have kept them for the required period of time. Several federal, as well as state, laws require employers to keep job applications and resumes from both qualified and unqualified applicants at least one year from the date the hiring deci-sion was made. This is in the event that your hiring decision is challenged as discriminatory. You will need to have documentation to establish that it wasn’t, and job applications can help you do that.

Holiday parties can be a great way to bond with staff and build teams—the REWARDS. On the other hand, they can be fraught with potential legal issues, and concerns—the RISKS.

Thus, the question becomes: to do or not to do? And if you “do”, then there are the issues of: what, where, when, how and who?

It’s important to recognize that although the employees may be off the clock during the event, the employer may still be respon-sible for actions that occur during or after the event. Furthermore, depending on the event, it could result in discriminatory, harass-ment and/or liability issues if not handled appropriately.

Officepartiesaren’ttheonlytype of employer-sponsored event, of course. Some employers like to take their staff on trips to Hawaii, or have company picnics, or par-ticipate in team building programs. It doesn’t matter what the event is, they all serve a good purpose and, unfortunately can, if not thought through and handled correctly, result in problems for the employer.

Since employer-sponsored events docarrymanypositivebenefits,then simply be aware of the con-cerns, manage the risks appropri-

ately and follow our ‘best practice’ advice below.

Holiday Parties Several issues may materialize when it comes to holiday parties. Beginning with the fact that the holiday you plan to recognize is not one that your employees believe in. This is becoming more and more prevalent as the workforce becomes more diverse. While you may be thinking, “That’s no big deal. It’s my com-pany. I’ll do what I want.” Issues of religious discrimination and/or harassment can become a liability for the unsuspecting employer.

The best way to avoid allega-tions of discrimination is to refrain from using religious descriptions or decorations that represent a particular belief. For example, consider calling the celebration a “Holiday Party” or “A Celebration of Seasons” rather than a “Christ-mas Party.”

If your main intention for the party is to reward employees for their hard work throughout the year, you may also want to con-sider celebrating during a differ-ent time of the year. Sponsoring events such as summer BBQs or a day at an amusement park, for example, are great ways to show employee appreciation while

avoidinganypotentiallyconflict-ing religious connotations.

Another problem: alcohol. Any time alcohol is available at holiday parties, the potential for negative employee issues increase. Obviously, not serving alcohol at the party would likely solve that problem, but many employers still opt for cocktails. So, if you plan to serve alcohol at this year's party, consider limiting the risks by uti-lizing the following tactics:• Take the focus off of drink-

ing. Promote the other aspects of the party, such as the menu and entertainment, so em-ployees can look forward to the food and dancing, rather than the liquor selection.

• Accept cash only, or tickets. Require employees to pay for drinks. Have unlimited free non-alcoholic beverages available for employees who don't drink and to encourage drinkers to save their money. Or, consider utilizing a drink-ticket system in which each employee is entitled to two drinks on the house, and no more.

• Time it right. Choose when to have alcohol available, either pre-dinner or during dinner only. If you do choose to have

By Rebecca Crane and Tim Twigg

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The BOP Newsletter is published quarterly by Bent Ericksen & Associates, P.O. Box 10542, Eugene, OR 97440. Copyright © 2012, all rights reserved. No part may be reproduced in any form without the written permission of Bent Ericksen & Associates. Printed in the U.S.A. Subscription rate: $125 per year (no charge for Bent Ericksen clients on Annual Support Agreements).Editorial Staff: Michelle Allen, Rebecca Crane, Joanne Gains, Frank Hotchkiss, Tim Twigg

BOP “Bent-on-Personnel” Quarterly HR NewsletterThis newsletter, which was specifically prepared by the editorial staff of Bent Ericksen & Associates, is not designed to render legal advice or legal opinion. Such advice may only be given by a licensed, practicing attorney, and only when related to actual fact situations. For client service, order information, questions, comments, or materials for inclusion write:

Bent Ericksen & AssociatesPO Box 10542, Eugene, OR, 97440 800/679-2760 or visit our web site at www.bentericksen.com.

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BOP NEWS—FALL 2012

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the bar open during the entire party, always make sure it closes at least one hour before the party ends.

• Choose alcohol and food wisely. Beer and wine are better than hard liquor, given the relative alcohol content. Limit the amount of salty, greasy, or sweet foods because they tend to increase thirst.

• Invite families and/or clients and vendors. The presence of employees' family mem-bers or other work-related colleagues can encourage employees to be on their best behavior.

Although you have the best intentions for limiting alcohol consumption, there is still the chance employees may get out of hand with their behavior or be too impaired to drive. Here's how to prevent those situations from hap-pening: 1. Designate a person(s)

to monitor employees' behavior. Items to look for include: how much em-ployees drink and whether they have a safe ride home; employee interactions, es-pecially those who become "too friendly" with each other or if tempers rise; any other employee activities that may be dangerous to themselves and others.

2. Cover all transportation bases by: 1) arranging for a taxi or car service for em-ployees; 2) asking employ-ees to designate a driver ahead of time, such as a family member to take them to and from the party if they plan to drink; 3) suggesting that employees carpool with each other so that those who drink can ride with those who don't. Just be careful not to make employees feel like that is a requirement.

3. Prepare for the possibility of pre-partying. It's safe to assume that some employees will start the party on their own before they arrive at the actual party, so to minimize that possibility:

• Impose a rule that employees who arrive drunk will not be admitted to the party, and a pre-designated driver (e.g., an employee-volunteer or a taxi) will take the intoxicated employee home.

• If the party is after work, arrange for free transporta-tion from your business site to the party site and back, so employees don't have the chance to hit happy hour beforehand.

• Remind employees about yourcompany'sofficealco-hol and substance abuse pol-icy and the rules of behavior, publicintoxication,fighting,harassment, etc., that will be

enforced at the party These reminders can be done via e-mails or memos a few days before the party. Trying to explain this, after-the-fact, to an employee who is already drunk when they show up to the party will not work.

Other Employer-Sponsored Events Many employers sponsor outside activities to enhance team building. For example, employers have sponsored ski trips, picnics, and attended theater events, played softball, or gone to exotic places like Hawaii. While that can bolster morale and enhance work-ing relationships, the employer could be on the hook for liability if something bad happens in the course of the activity.

The key word here is “spon-sor.” If an employee gets hurt, either while traveling or during such an event, the injury is likely to be considered work-related and reported as such to your work-ers’ comp carrier. Here are some examples: • If alcohol is consumed dur-

ing the event, and alcohol is ruled to be the cause of an accident, it is likely that the employer would be held responsible.

• If an employee, who had been drinking, falls and twists his/her foot on the way to the rest room and could not work for 4 weeks, you

may be forced to bear the cost, through your workers’ compensation carrier, of medical treatment, plus sal-ary for the lost work time.

• If an employee was involved in a car accident on the way home from a company spon-sored event and was severely injured and totally disabled, the workers’ comp carrier could be paying for a lifetime of total disability, which wouldsignificantlyaffectyour insurance premiums.

As you can see, an employer may be held liable for any acci-dents or injuries resulting from such events. There are many ways to minimize your risk. For example, eliminate alcohol, and inform employees that attendance is completely voluntary and free from any expressed or implied pressure from management.

Employee Compensation Staff is often intimately involved in planning the details of the party. If staff participates either in planning the party or acting as helper-hosts during the party during or outside normal work hours that time is consid-ered paid time. Even if staff is willing to do so voluntarily, the labor department will consider their time to be work-related and therefore paid time.

BOP NEWS—FALL 2012

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Furthermore, if participants who attend the event are either required to attend or are led to believe their performance stand-ings would be damaged by non-attendance, then compensation is required. Be sure to inform those who are attending the event that they are doing so voluntarily and will not be paid unless they are performing assigned duties.

Harassment Complaints In some unfortunate cases, the good intentions of the employer-sponsoredeventaresignificantlydampened when the employer receives a sexual harassment complaint after the event occurred. The employee, in these cases, wants to hold the employer responsible and, all too often, the employer will be held account-able. How can this be prevented? The following should help reduce exposure to these claims:

• Remind employees about general standards of con-duct;

• Re-issue the company policy on anti-harassment and have everyone sign an acknowl-edgement of receipt;

• Clearly outline conse-quences that will be taken if behavior is unacceptable;

• Encourage appropriate behavior to ensure everyone has a good time and lead by example;

• Do not serve and/or mini-mize the amount of alcohol served. Inappropriate be-havior is more of a potential when alcohol is involved.

If you do receive a com-plaint of harassment, take it seriously and immediately act onit.Itwillnotbenefityoutoignore the complaint and pre-tend it didn’t happen or isn’t

your problem. An employer always has an obligation to keep employees safe and free from unacceptable behavior, even when it’s an after work, off-site event.

In Conclusion Our aim is to help you min-imize potential liability for discrimination, sexual harass-ment allegations, workers’ compensation claims or other liability that may arise from caution not being exercised. Remember this is an employ-er-sponsored event. Consider that any social setting may reduce inhibitions and relax a sense of professional behav-ior. Unfortunately, in today’s litigious climate, employers need to take certain precau-tions to avoid any embarrass-ing, or possibly very costly, consequences.

3 AnnualSupport Plans

Q: We recently conducted an audit of our I-9 forms. Unfortunately, we found some errors. How can we correct them? Do we correct them on the same form, or should we have the employee complete a whole new form?

ANSWER: It is important to keep a record of the fact that you already had an I-9 form on file for the employee as required even though it was inaccurate; therefore, it is usually recommended that you correct the problem on the same I-9 form. I recommend you use a different color of ink, note the date of the change, and provide a very brief reason for the change. Also, be sure the right person is correcting the issue. One section of the I-9 is completed by the employee, and the other is completed by the employer. If the error occurred in the section to be completed by the employee, be sure it is the employee who does the correction. If you prefer to have the I-9 completely re-done, attach the original I-9 to the new one so that it is clear you had one on file as required in the event that you are ever audited.

Q: I’m frustrated with a group of my employees who continually clock in and start working early. Some-times this extra time adds up to require overtime payments. Do I have to pay them? After all, I didn’t authorize them to work early.

ANSWER: Yes, you do have to pay them. The Fair Labor Standards Act (FLSA), and similar state laws, requires employers to pay for all work time, regardless of whether or not the time was authorized by you. Basically, if an employee is “suffered or permitted to work,” s/he must be paid. Your only course of action is to establish a policy prohibiting employees from working before or after their shift without authorization from the employer. Then, when an employee violates this rule, hold him/her accountable by applying disciplinary measures (i.e. verbal warnings, written warnings, suspen-sions without pay, termination, etc.). Under no circumstances, though, can you withhold their wages.

Did You Know?

For personnel questions or advice on a specific personnel issue, e-mail us at: info@bentericksen.com

Q + A

DID YOU KNOW? Transgender individuals are protected from discrimination under Title VII?─The U.S. Equal Employment Opportunity Commission (EEOC) recently determined that discrimination based on gender identity, change of sex or transgender status constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. Drawing from previous court decisions, the EEOC explained that the statute's protections encompass a person’s biological sex, as well as their gender, which includes cultural and social aspects associated with masculinity and femininity.

DID YOU KNOW? Mississippi’s workers' compensation system was recently overhauled? ─A new law signed by the governor makes sweeping changes to Mississippi's workers' compensation system and overturns the court precedent that presumesthecompensabilityofaclaimshouldfavortheinjuredworker.Specifically,effectiveJuly1,2012,Section71-3-1oftheMississippiCodestates, "notwithstanding any common law or case law to the contrary, this chapter shall not be presumed to favor one party over another and shall not beliberallyconstruedinordertofulfillanybeneficentpurposes."Additionally,Mississippi'sWorkers'CompensationLawhasbeenamendedtoprovideadefinedprimarypurpose:"topaytimelytemporaryandpermanentdisabilitybenefitstoeveryworkerwholegitimatelysuffersawork-relatedinjuryor occupational disease arising out of and in the course of his employment, to pay reasonable and necessary medical expenses resulting from the work-related injury or occupational disease, and to encourage the return to work of the worker."

Thisnewlaw,S.B.2576,requirestheMississippiWorkers'CompensationCommissiontodraftawrittenstatementthatdetailsthechangesmadetotheworkers' compensation system. Within ten days of the Commission issuing the statement, all employers must post the Commission's statement in the workplace adjacent to other notices for which posting is required by law.

DID YOU KNOW? Connecticut just legalized medical marijuana? ─BeginningonOctober1,2012,Connecticutresidentsarenowabletosmokemarijuanatoalleviatesymptomsofadebilitatingmedicalconditionwith-out fear of arrest or prosecution by Connecticut authorities, or adverse employment action by employers in the state. The new law, entitled An Act Con-cerning the Palliative Use of Marijuana (Public Act No. 12-55), was signed by Governor Malloy on May 31.

TheConnecticutlawspecificallystatesthat"[n]oemployermayrefusetohireapersonormaydischarge,penalizeorthreatenanemployeesolelyonthebasis of such person's or employee's status as a qualifying patient." However, it also provides that employers may prohibit the use of intoxicating sub-stancesduringworkhoursandmaydisciplineemployeesforbeingundertheinfluenceofintoxicatingsubstancesduringworkhours.

BOP NEWS—FALL 2012

T I D B I T S

BOP NEWS—FALL 2012

WHAT’S NEWIn Employment Compliance

Amendment to New York Wage Deduction Statute Expands Allowable Deductions—TheamendmentgoesintoeffectonNovember6,2012and,unlessextended,willexpireandbedeemedrepealedthreeyearsaftertheeffectivedate.Significantly,theamendedlawallowsemployerstomakewagedeductionstorecover“anoverpaymentofwageswheresuchoverpaymentisduetoamathematical or other clerical error by the employer” and “repayment of advances of salary or wages made by the employer to the employee.”

Under the amended law, deductions still are permitted only if expressly authorized in writing by the employee and if the deductions are, generally, for thebenefitoftheemployee.Theemployermustretaineachauthorizationforatleastsixyearsfollowingtheterminationoftheemployee’semploy-ment. The amendment requires that, before any deduction is made, the employee must receive “written notice of all terms and conditions of the paymentand/oritsbenefitsandthedetailsofthemannerinwhichdeductionswillbemade.”Further,theemployermustprovidetheemployeewithinformation regarding deductions and an updated total of all deductions from the employee’s wages. Employees have the right to revoke authoriza-tion for any or all wage deductions at any time, and employers are required to cease those deductions as soon as possible.

The NY DOL is expected to issue regulations on the timing, frequency, and notice requirements for these deductions, including a procedure that the employee may use to dispute the amount of the deduction. Employers should refrain from entering into any wage deduction agreement with employ-ees based on the amended law until after its effective date and after the NY DOL issues its regulations.

Illinois Bans Employers From Demanding Social Media Passwords From Employees and Job Applicants—OnAugust1,2012,Illinoisbecamethesecondstate,afterMaryland,toprohibitemployersfromseekingaccesstocurrentemployees’andjobappli-cants’ social media content and passwords. The new law states: “It shall be unlawful for any employer to request or require any employee or pro-spective employee to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s accountorprofileonasocialnetworkingwebsiteortodemandaccessinanymannertoanemployee’sorprospectiveemployee’saccountorprofileonasocialnetworkingwebsite.”Thenewlaw(HB3782)becomeseffectiveJanuary1,2013.

Oklahoma Joins Other States in Enhancing "Open Carry" Firearms Law—Oklahoma becomes the 25th state with either “permissive open carry” laws (no permit required) or “licensed open carry” (permit required). Okla-homa now joins Utah, North Dakota, Minnesota, Iowa, Indiana, Tennessee, Georgia, Mississippi, New Jersey, Connecticut, Rhode Island, Hawaii and Massachusetts as a “licensed open carry” state.

Oklahoma’smeasureallowsOklahomacitizenstoopenlycarryfirearms.Thebillpermitsthosewhoarelicensed,oralreadyhavebeenlicensed,tocarryafirearmundertheOklahomaSelfDefenseActtoopenlycarryaweaponorconcealit.Italsoallowspropertyownerstoopenlycarryafirearmontheirpropertywithoutaconcealedcarrypermitforthepurposeofselfdefense.Businessesmaycontinuetoprohibitfirearmstobecarried on their premises.

New FMLA Booklet Issued by the Department of Labor—InanattempttoclarifytheprocessesassociatedwiththeFMLA,theDepartmentofLabor(DOL)hasissueda20-pagesummaryentitled“NeedTime?TheEmployee’sGuidetotheFamilyandMedicalLeaveAct.”Whilethebookletisdirectedprimarilytoemployees,withflowchartsandQ-and-A sections with titles like: “What Can the FMLA do for Me?” and “How Do I Request FMLA Leave?” it also provides to employers a road map of the process that the DOL is likely to use when a case comes before it that includes a claim of FMLA interference or retaliation.

New Rule Makes Defense More Difficult for Employers—OnMarch29,theEqualEmploymentOpportunityCommission(EEOC)issuedafinalrulemakingitmoredifficultforemployerstoestablisha“reasonable factor other than age (RFOA)” defense for disparate impact claims under the Age Discrimination in Employment Act (ADEA).

The EEOC’s new rule now requires employers not only to prove the existence of a “reasonable factor other than age” when making employment decisions, but also to consider the administration, implementation and potential harmful effects these “reasonable factors” may have on older workers.Overall,theruleincreasesthelevelofscrutinyofthe“reasonablefactorotherthanage”defenseandmakesitmoredifficultforemploy-ers to prevail using the defense.

In light of the new rule, employers should pay closer attention to employment policies or practices that may adversely affect older workers; train managers and supervisors to implement policies fairly across the workforce using objective criteria in making employment decisions; and recon-sider policies and practices that may have an adverse impact on older workers in favor of policies that may reduce the effect on older employees.