Earlier this month, the House of Representatives held a hearing on a bill that would make offering paid sick leave mandatory for employers.

If passed, the Healthy Families Act (HFA) would require any company with 15 or more employees to offer full-time workers seven paid sick days a year. Part-time employees would get a prorated amount based on how much they work.

Like the FMLA, the HFA would let employees take time to care for themselves or a family member. The leave would be legally protected — meaning employees could sue if they feel they’ve been retaliated against for using it.

The HFA is less strict than the FMLA, however. “Family member” includes any blood relative and anyone whose relationship with the employee is “the equivalent of a family relationship.” Any physical or mental illness, injury, or medical condition could result in a protected absence.

What about current paid leave policies?

The bill says employers won’t need to change anything if they already give employees sick leave that’s at least equivalent to what’s required by HFA. But employers would be prohibited from eliminating leave they already offer in an attempt to offset the mandatory sick days.

That means companies won’t be able to reduce vacation time to offset the costs of additional sick time. And some experts interpet the provision to mean companies offering a general PTO bank would need to add seven sick days in addition to what’s already available.

What to expect

Attorney Mike Aitken, speaking at a recent Society for Human Resources Management conference in Washington, D.C., said he expects Congress to take a vote on the bill this spring.

The HFA was introduced in the Senate a few years ago and failed to move. But that was before President Obama — a vocal supporter of the bill — and an increased Congressional Democrat majority arrived in Washington.

So far, no states have made sick leave mandatory — measures have failed in California, Ohio, New Jersey and Washington. Three cities — San Francisco, Milwaukee and Washington, D.C. — have passed mandatory sick leave laws.

We’ll keep you posted on the HFA.

A recent case is a reminder that working in HR is often like herding cats — once you’ve got managers doing one thing right, there’s a chance they’re making mistakes in another area.

In this case, the manager kept all his documentation in order, but still managed to cause big trouble for the company.

An employee was disciplined for several behavior and performance issues. Over the course of a year, she was:

• given a negative review for failing to get work done on time
• warned about her attendance
• suspended for falsifying time records, and
• warned in writing for not following the employer’s procedures.

Eventually, she was suspended again for failing to perform some of her job duties and placed on a performance improvement plan. The company gave her one more chance to correct the problems.

In her next review, her manager described her performance as “marginal.” The supervisor brought the situation to his boss and the employer’s HR manager, who made the obvious decision: The employee was fired.

Sound reasonable? The employee didn’t think so. She claimed her boss disciplined her and gave her negative reviews because of her age and sex. She pointed to several comments he made to her, including, “Women are good for one thing and that is sex,” and, “They’re too old to do their jobs well anymore,” referring to two of the woman’s co-workers.

Didn’t make decision

The employee took the issue to court. The company tried to have the case thrown out, arguing that the manager wasn’t involved in the final decision to fire her. He brought the problems to the attention of his supervisor and HR, and they made an unbiased decision based on his documentation.

But that didn’t matter to the judge. Even if the final decision-makers weren’t biased, the woman wouldn’t have been fired without the actions her manager took. And, based on his discriminatory comments, the court believed she’d been repeatedly disciplined because of her age and gender.

The court refused to toss the case, and the now company will have to defend itself in a costly jury trial or pay an expensive settlement.

Stay out of trouble

Here are some steps HR can take to prevent one rogue supervisor’s biases from causing big legal trouble for the company:

• Investigate. As this case shows, sometimes it’s not enough for a decision-maker to rely on a front-line manager’s assessment. It’s often necessary to ask for the employee’s side of the story before taking any action.
• Train regularly. Managers need to understand how the things they say can be interpreted by employees — supervisors have gotten in trouble over less outrageous comments than the examples in this case.
• Follow up. After training, make sure supervisors who still give the impression of bias are disciplined.

Cite: Lanahan v. Southern Nevada Health District

Legal experts are still trying to comb their way through the 1,079-page American Recovery and Reinvestment Act President Obama signed into law last month. And deep in the document, they’re finding several provisions that will have a big impact on HR.

1. Tax breaks

One change that could affect companies’ hiring plans: a tax incentive to boost the employment of certain disadvantaged groups.

Under the new law, businesses can claim a 40% credit on the first $6,000 of wages paid to:

• unemployed veterans (people discharged from military duty within the past five years who’ve received at least four weeks of unemployment benefits within the previous 12 months), and
• “disconnected youths” (individuals between the ages of 16 and 25 who haven’t worked or attended school in the past six months).

2. New HIPAA regs

The stimulus package expands the Health Insurance Portability and Accountability Act (HIPAA) to give businesses more responsibility in keeping health records confidential.

Under the new provision, in the event of a breach of health data, any business covered by HIPAA must notify affected individuals within 60 days after they discover the information has been compromised.

3. COBRA subsidy

Under the stimulus plan, the government will subsidize COBRA health insurance premiums for employees who have lost or will lose their jobs between Sept. 1, 2008, and Dec. 31, 2009. Here’s how it’ll work:

Employees are responsible for paying 35% of the premiums. Employers pay the rest, then claim their share as an offset against payroll tax liability.

Any workers who were terminated after Sept. 1 but didn’t take COBRA will get a second chance. Employers must send those employees a new notice before April 15.

4. Increased unemployment benefits

The plan gives states more money for unemployment benefits, extending a program that offers benefits for an additional seven weeks. Also, the law expands eligibility to employees who lose their jobs due to certain family reasons, such as a spouse’s relocation or the need for time to take care of a sick family member.

As a result, experts say, employers could end up paying higher unemployment insurance taxes.

Many employers choose to have leave policies that are more generous than what the FMLA requires. But as a recent case shows, that doesn’t mean those companies are immune to lawsuits.

An employee needed two months off work after complications during surgery. His boss told him he could take paid leave for whatever time he needed.

Though the employee was eligible for FMLA, neither he nor his boss ever mentioned it as a possibility. Instead, he took time off and was paid his full salary until he was able to come back to work.

The manager told him his job would be open for him when he returned.

The problem: The supervisor couldn’t live up to his promise. Once he went back to work, the employee was put in a different position and given a pay cut.

He sued under FMLA, claiming he was unfairly denied reinstatement to his former position.

The company tried to have the case thrown out, arguing the employee had no right to reinstatement because he never took FMLA leave.

But the judge didn’t buy it. As the court ruled, most likely, the only reason he didn’t take FMLA is that his manager never offered it — and he was obligated to after he learned the reason the employee needed time off.

The company may have acted generously by giving the employee seemingly indefinite paid leave, but that didn’t mean he wasn’t entitled to the FMLA’s job protection.

Generosity’s not enough

The lesson for managers: It’s easy to think employees don’t need FMLA because the company’s offering a more generous leave policy and plans to keep the employee in the same job no matter what.

But as this case shows, those plans don’t always work out. And that makes employers an easy target for lawsuits.

Managers need to notify HR whenever they think an employee qualifies for FMLA so leave can be offered — no matter what the employer’s individual leave policy.

Cite: Smith v. Primecare Medical, Inc.

Though it was only signed a few weeks ago, the Lilly Ledbetter Fair Pay Act has already caused big legal problems for some companies.

Signed by President Obama on January 29, the Ledbetter Act gives employees more time to sue when they believe they’re victims of pay discrimination. The Supreme Court had previously ruled pay bias suits had to be filed within 180 days of the discriminatory decision.

But the new law gives employees a new 180-day window to sue every time they receive a paycheck in which they claim they are discriminated against.

The act was effective immediately — and applies retroactively to lawsuits still pending as of May 28, 2007, the day before the Supreme Court’s decision.

It’s already made it tougher to prevent discrimination suits:

In one case, three women sued their employer, claiming they were unfairly demoted because of their gender.

The demotions occurred in 1990 — so the company argued the employees missed out on the statute of limitations.

But the court issued a ruling on February 2 — four days after the Ledbetter Act was signed. And, since the demotions resulted in a loss of pay that continued to the present day, the court ruled the new law applied to their lawsuit.

The judge noted that just a week earlier, the case would have been tossed on those grounds. But not anymore.

Eventually, the case was thrown out because the company proved the demotions were based on non-biased factors (Cite: Bush v. Orange Counry Corrections Dept.).

In another recent case, an employee believed he was being paid less than his colleagues based on his race and gender. He sued.

The company tried to have the case dismissed because his pay was set several years before — well outside the statute of limitations. But the judge let the case go forward, applying the Ledbetter Act to his claims (Cite: Rehman v. State University of New York at Stony Brook).

What can HR do now?

Given the law’s immediate impact, what steps can HR take now to prevent lawsuits based on decisions that occurred far in the past?

Some experts recommend conducting a self-audit to uncover anything that could look like pay discrimination.

First, examine company policies on starting salaries and raises. Many companies don’t have a formal policy, giving individual managers wide discretion in pay decisions — which could turn out to be a liability under the new law.

Next, consider analyzing pay data to make sure no employees have been harmed by unfair decisions that violated your policy. Then, your company can remedy the situation without having to go to court.

HR knows how to comply with all of FMLA’s requirements. But not all managers do — and they’re normally the first ones employees talk to when they need time off. That leaves many companies open to lawsuits caused by some common FMLA mistakes.

What’s the best strategy? Remind managers to come directly to HR any time they have a situation involving FMLA.

Otherwise, they may end up making these common mistakes that could get the company in big trouble:

1. Giving leave to ineligible employees – It’s important for managers to be aware of who’s allowed to take FMLA and how much time they get — otherwise the employer may be stuck granting more leave than the law requires. In one recent case, an employee on FMLA called her boss to ask for more time off because she needed follow-up surgery. Even though the extra time put her over her 12-week guarantee, the manager said it was okay. But when the company fired her for missing too much work, she sued — and won. The court ruled it was the supervisor’s responsibility to let her know she was out of leave (Cite: Cutting v. Ferrous Processing and Trading Co.).
2. Failing to adjust performance standards – Mangers can discipline employees for poor performance even if they take FMLA — unless the performance problems are somehow related to their medical leave. In a recent case, an employee was fired after she failed to meet a yearly sales quota. However, she sued, claiming the only reason she couldn’t close enough sales was that she was out on FMLA for three months. The court agreed — the company should have lowered the standard to account for the three months she missed (Cite: Wojan v. Alcon Laboratories, Inc.).
3. Asking for too much medical info – The FMLA places strict limits on what information employers can gather when employees take leave. In one recent case, an employee submitted a certification form listing her symptoms and how long the condition would last. But that wasn’t enough for her manager. The company asked her for another form, this time with a specific diagnosis. She refused and was fired after she began her leave anyway. The matter ended up in court, and the company lost. The employee’s first form had everything the company needed — verification that she had a serious medical condition, “medical facts” to back that up and a probable duration. Employers aren’t entitled to a specific diagnosis when an employee takes leave (Cite: McDougal v. Altec Industries, Inc.).
4. Delaying the response to a request – Managers are busy, but handing out FMLA paperwork is one task that can’t wait. Companies can be on the hook if it looks like they discourage employees from taking leave — even if an employee’s request is eventually approved. In a recent case, an employee told her boss she needed FMLA and asked for the necessary forms. She had to badger him several times and wait three months before she finally got them. Once she turned in the forms, HR approved the leave. But she sued, claiming the boss was trying to keep her from taking FMLA. The court agreed, and the company lost (Cite: Mueller v. J.P. Morgan Chase & Co.).
5. Confusing FMLA and unexcused absences – Between HR tracking FMLA use and managers tracking employee absences, it’s easy for the facts to get lost in the shuffle — and managers may end up disciplining an employee for being absent too often when some of that time was protected under FMLA. Before any absence-related action is taken against an employee who’s used FMLA, companies should conduct an audit to determine if any absences the manager has tracked should’ve been excused.

Just as employers were set to start using an updated version of the Form I-9, the feds have delayed the implementation of the new form. What now?

Employers would’ve been required to use the updated I-9 on February 2. But on January 30, the U.S. Citizenship and Immigration Service announced the effective date has been pushed back to April 3.

The delay was issued in response to a memorandum from the Obama administration asking federal agencies to freeze certain unimplemented regulations.

The USCIS has also extended the time it’s taking comments from the public on the new form. Comments will be accepted until March 4. In other words, the update isn’t final, yet. There’s still a chance the form could change again before going into effect.

What’s changing?

The biggest change planned for the I-9: Employers will no longer be able to accept expired documents for employment eligibility verification. Right now, employees can submit expired passports and other documents, but that’s being stopped because expired IDs are easier to forge.

Also, three “List A” documents will be removed: the “Temporary Resident Card” (Form I-688) and “Employment Authorization Cards” (Forms I-688A and I-688B). The USCIS no longer issues those cards, and any that are in circulation have expired by now. Instead, people are issued Form I-766, which remains on the list.

These documents will be added to List A:

• the U.S. Passport Card to List A
• foreign passports containing machine-readable visas, and
• passports from certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

What form should employers use now?

For now, employers should continue using the current version (it’s dated 06/05/07 at the bottom of the last page) and be prepared to change forms on April 3.

Both the current form and the one employers will be required to switch to are available here.

A new Supreme Court ruling sends managers a message about conducting complaint investigations: Watch how employees serving as witnesses are treated — or the company could be hit with a retaliation claim.

The background of the case:

Vicky Crawford worked for the Metropolitan School District in Nashville, TN. One of her co-workers filed a sexual harassment complaint against their supervisor.

As part of the ensuing investigation, Crawford was asked if she’d ever witnessed any harassment. She said, yes, she’d seen the supervisor harass other employees — and was harassed herself on several occasions. She provided a list of inappropriate sexual comments the supervisor had said to her during her tenure.

Despite that testimony, the alleged harasser was never fired or disciplined. Shortly after the investigation, Crawford was fired — the school district claimed she’d been embezzling.

She sued, claiming the embezzlement allegations against her were false and she was really fired in retaliation for her comments during the investigation.

Protection for witnesses?

Two lower courts ruled against Crawford, stating that Title VII’s anti-retaliation provisions only apply to employees who file their own discrimination claims or participate in formal investigations by the EEOC.

But the Supreme Court disagreed. Employees are protected from retaliation whenever they “oppose” an employer’s unlawful actions — and, according to the Court, that includes an employee who participates in an internal investigation.

The lesson for managers: Be cautious when dealing with any employees involved in a complaint investigation. Employees who confirm allegations of harassment or discrimination can’t be treated differently than those who don’t.

And, of course, it’s key to document all performance or behavioral issues regarding those employees in case the company has to fight future retaliation claims.

Cite: Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee

One of a manager’s hardest tasks: Dealing with a difficult employee who’s constantly making frivolous complaints. What can supervisors do without being accused of retaliation?

A recent court case involved an employee who didn’t get along with his boss or his co-workers. He claimed his supervisor treated him different than younger, female employees.

Throughout his employment, he filed several complaints with management and HR. For example, he alleged:

• his supervisor refused to take his suggestions during staff meetings
• his work was monitored more closely than other workers’, and
• a performance review that labeled him as a difficult employee was the result of age and gender bias.

HR investigated each complaint, but could find no evidence of discrimination. The conclusion: The employee was “sensitive to feedback” and needed to work out his personal conflict with his supervisor. After each investigation, he was told to improve the relationship and “move on.”

Can manager discipline constant complainer?

The company began outsourcing some of its operations and had to shrink the employee’s department. He was one of the employees chosen to be terminated.

He sued, claiming he was treated unfairly because of his gender and fired in retaliation for his complaints.

The company argued that all of the employee’s complaints were handled properly and the company issued  appropriate responses. The constant complaints were disrupting the workplace, so the employee was asked to improve the relationship with his boss.

Who won the case? Answer: the company. The court ruled the complaints and the termination weren’t connected.

The judge took the situation for what it was: The company disciplined — and then chose to get rid of  — a difficult, poor-performing employee.

The lessons for managers dealing with difficult people who complain:

1. Treat all complaints the same. Assuming someone’s claims are frivolous is an easy way to avoid correcting a real problem. That could get the company sued.
2. Educate employees on what constitutes harassment and discrimination. One way to limit frivolous complaints is to educate people on what is and isn’t against the law.
3. Don’t avoid dealing with difficult people. As this case shows, managers can take action when an employee’s constant complaints disrupt the workplace. Just make sure all the problems are documented.

Cite: Brinkman v. Andersen Corp.

Some members of Congress are already following through on one of last year’s campaign promises: making it easier to sue employers for pay discrimination.

On January 9, the House of Representatives passed two bills to fight pay bias: the Ledbetter Fair Pay Act and the Paycheck Fairness Act.

Both bills were introduced last year but met resistance from Congressional Republicans and a veto threat from President Bush. President-elect Barack Obama, on the other hand, supports both measures.

Ledbetter Fair Pay Act

The Ledbetter Act would overturn a controversial Supreme Court decision from 2007. Lilly Ledbetter sued her employer, Goodyear Tire and Rubber, after learning she’d been paid less than males working in the same job.

The Court decided against her, because she missed out on the statute of limitations. The Court ruled she had to file her case within 180 days after the discriminatory decision was made — in this case, when she was hired 20 years ago.

The Ledbetter Act would give employees a new 180-day window to sue every time they get paid.

Paycheck Fairness Act

The PFA would eliminate many of the defenses employers now have when employees make pay bias claims. The biggest changes HR needs to watch for:

• Previous jobs don’t matter – Right now, companies can be off the hook for paying a man more than a woman if they show he earned more at a previous job so he was able to negotiate for a higher salary. But the PFA would only allow differences based on job-related factors, such as performance, responsibility, training, education or experience.
• No geographical differences – Under the Equal Pay Act, it’s acceptable for employees at different locations to be paid differently to account for local market conditions. But under the new law, employees would be able to sue based on a comparison with a co-worker located anywhere in the country.
• No more confidential salary info – Right now, companies can classify some salary data as confidential and discipline employees for disclosing it. Under the new law, that would be considered unlawful retaliation.
• Punitive damages – In addition to liability for back pay, companies that violate the Paycheck Fairness Act could be hit with punitive damages.

What’s next?

The bills will likely be voted on by the Senate next week, where experts say they have a good shot of passing with the increased Democratic majority. We’ll keep you posted.