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Monday
Jan022017

ICYMI: Our Social Media Posts This Week – Jan. 1 - 7, 2017

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the posts on Sunday 1/1/17, here and here, we wished you and your family and friends a wonderful and successful 2017!

TAKEAWAY: It's a clean slate – yours to write on for the new year. Take advantage!

The post on Monday 1/2/17 was about the EEO policy statement from the HHS Secretary. Well said, Madam Secretary. The statement reaffirms HHS's commitment to diversity and preventing discrimination, harassment and retaliation. The statement is in the post.

TAKEAWAY: At least part of the federal government is taking seriously the diversity of the workforce and protection of the right to that diversity. Why shouldn't you in the private sector do the same?

In the post on Tuesday 1/3/17 we asked: Want to ease FMLA headaches? Doctors prescribe 3 remedies. All of them stem from you asking the doctor if there are questions about FMLA certifications or other administrative issues. So what have some doctors said regarding that? They don't want to be in the middle, so lay the groundwork (see the post). Talk to them on the phone, early in the process, after HIPAA prerequisites (in the post) are met. And finally, take the doctor's determination as to leave duration as a guideline, not a hard line in the sand. Things to ask or obtain are in the post.

TAKEAWAY: Working with the doctor helps make the FMLA (re)certification process go smoother and easier, both boons for the employer and employee.

The post on Wednesday 1/4/17 asked: In what ways can a company use (or not use) photos of its employees? The first thing is to distinguish between using the photo for security and identification purposes (for which most employees have no problem) and public or commercial purposes. So what should an employer do? The simplest thing is to ask employees if they are ok with being included in a public/commercial photo (and, as the post suggests, get authorization in writing). The post also details some ways that taking or having photos of employees may be risky for an employer, so be careful.

TAKEAWAY: Photos of employees can be put to many purposes – make sure those photos you take and use are legal and authorized (and don't subject you to unnecessary risk of liability).

In the post on Thursday 1/5/17 we talked about the law of managing and maintaining personnel records. Oh so important. Question #1 is always "How long do I have to keep those records?" The real answer is that it depends on the record, what the applicable law says, and what the record might be used for (i.e., what defense or support it could provide for you aside from the purpose for which it was created). The EEOC recommends keeping records for at least 1 year. The FLSA and other federal laws require certain records (listed in the post) to be kept for at least 3 years. Also make sure documents are maintained in the appropriate file (see the post) with access granted only to those with a (statutory) need to know.

TAKEAWAY: Have a policy on records retention and maintenance, including what types of documents will be in each file and who will have access. Then follow the policy.

The post on Friday 1/6/17 was about missing workers hidden in plain sight. Yes this is another in the series about classifying a worker as an employee or independent contractor – the wrong choice can be costly for an employer. The post details what that employer, a limo company, requires the workers (who are drivers) to do if they want to work there – including forming their own LLC as an umbrella for the independent contractor relationship. A judge recently pierced that veil. The decision is on appeal as is a decision awarding a driver unemployment compensation after he was laid off. But nothing has changed as far as how that employer conducts business with the drivers.

TAKEAWAY:  Remember that PA is one of the states cracking down on worker misclassification – ensure that your workers are properly classified before it becomes an issue and an expense.

Finally, the post yesterday 1/7/17 asked: What am I doing wrong? Common FMLA mistakes. One of the most common errors made by employers is not recognizing the employee's notice of the need for FMLA leave. Maybe the employee didn't come out and ask, but the employer found out through another channel – that still triggers the employer's obligations. As with an ADA request, the employee need not say "I need to take FMLA leave" to be the trigger. The post talks about a recent case in which the question of whether the employee provided adequate notice of the need for continuing FMLA leave was to be decided by the jury. The post also talks about another case where the court decided the employee did not provide sufficient notice of the need for FMLA leave (including the employee's refusal to provide additional information when asked by his supervisor).

TAKEAWAY: The employer has obligations once protections under the FMLA are invoked, but there must still be a trigger to start those obligations. Don't ignore the trigger, but don't make up one either.

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