Avoiding FMLA Violations

FMLA Violations have become far too frequent in the workplace. Employees became much more aware of their rights under FMLA during the COVID Lockdowns and many employers are finding it a challenge to fully grasp and to stay compliant with these regulations. Here are just a few of the recent violations that have occurred:

From Todays FMLA Violation Trends

LAKE CITY, FL—A DOL investigation found that an assisted living facility illegally terminated an employee after the employee exercised their federally protected medical leave rights. The employer was forced to pay the employee $1,894 in back wages.

What went wrong:

• The employer denied an employee medical leave under the FMLA despite the fact the employee met all eligibility and qualifying requirements for leave.

• The employer illegally terminated the employee after the employer failed to grant the employee protected leave for a medical condition covered by the FMLA.

ATLANTA GA – A DOL investigation discovered that the Georgia Department of Public Health wrongly disciplined and terminated an employee for absences protected under the FMLA. The department was ordered to pay $77,314 in back wages and reinstate the employee.

What went wrong:

• The department denied the employee’s request for leave for an FMLA-qualified condition.

• The employee’s denial of FMLA benefits resulted in wrongful discipline and subsequent termination. Employment Case Studies:

LOS ANGELES CA –A DOL investigation uncovered that a slaughterhouse and packing company illegally terminated an employee after the employee took FMLA-protected leave. The employee received $11,209 in back wages.

What went wrong:

• The employer failed to provide the employee with FMLA-related information prior to their medical leave.

• The employer did not inform the employee of their FMLA rights and protections. • The employer illegally terminated the employee after the employee took FMLA leave.

• The DOL determined that the employer violated the FMLA’s policy review and recordkeeping provisions.

LITTLE ROCK, AR—A DOL investigation found that a large waste management company illegally terminated an employee who used qualified FMLA leave to address a serious health condition. The employer was ordered to pay the employee $36,007 in back wages, which included wages the employee would have earned while they were unemployed and a 3% company-matched 401(k) contribution

What went wrong:

• The employer violated the FMLA when they terminated an employee for taking FMLA leave after the employee notified their supervisor of the need for medical leave. The employee’s leave request was approved by the employer’s third-party FMLA administrator.

• The employer recorded the employee absent on the first day of their FMLA leave and then promptly terminated the employee

●The employer failed to rehire the employee after learning that the employee’s FMLA had been     approved.

FMLA Violations can be costly and detrimental to a company’s “culture”. It is practically a full-time job to fully understand and stay compliant with these complex regulations. AllMyHR is a practical cost-effective tool to strengthen and streamline your HR department’s compliance and many other HR responsibilities. For less that $.50 an hour, AllMyHR provides you the peace of mind knowing your HR Department is functioning at its peak so you can focus on what you do best! For a 10-minute walk through of our services, go to AllMyHR.com and schedule a 10-minute discussion.

At AllMyHR, we know HR is key to the success of a business because it is our business. Recent findings from our State of HR survey reinforce this in new ways. It paints the picture of HR’s contribution to growth and productivity, as well as the challenges of burnout and lack of resources.  

Enterprise businesses already know this. They have robust HR functions leading their organizations and the business intelligence infrastructure to measure the impact. But small and mid-size businesses – the ones AllMyHR exists to serve – stand to benefit just as much from great HR yet lack the resources to do so. 

At AllMyHR, we are on a mission to close that gap, and we are excited to deliver a new level of expertise to the market to help our clients do just that. 

The Value of Great HR 

Let’s start with what we’ve learned. Earlier this year, our research partners surveyed nearly 2,700 senior business and HR leaders. In the last two-and-a-half years, these business and HR leaders have navigated business closures, the transition to remote work, regulatory changes, labor shortages, and most recently the prospect of an economic recession. From their feedback, we learned why during this period some companies not only survived but thrived, and why others didn’t.  

The takeaway? Today, HR is more important to a successful business than ever before.  

Business leaders recognize this. Before the pandemic, 50 percent of respondents described HR as very or extremely important. Now 66 percent of business and HR leaders see HR this way. 

This shift explains a lot of the trends the HR industry is seeing. Fifty-four percent of our respondents reported increasing their HR budgets during the pandemic. Nearly the same number, 53 percent, expect to raise it even more in the next 12 months.   

Healthy HR 

AllMyHR is the only company dedicated to addressing the HR and compliance needs of small and mid-sized businesses nationwide. Our system has guided small businesses through more than 1.3 million issues to date, and the breadth and depth of our expertise is not only HR, but the unique environment of small and mid-size businesses is unmatched.  

As our clients grow, their HR and compliance needs become more complex. The pace quickens, the variables expand, the importance of planning increases, and there are rarely black and white answers. It takes experience and expertise to know how to navigate these issues and transform actions into a strategy.  

Our report revealed four key building blocks for Healthy HR and better business outcomes: 

• Good Work-Life Balance 
• Potential for Career Growth 
• Thoughtful Compensation 
• Appropriate Workload 

The question for many small and medium-sized businesses is how to achieve these four building blocks – on top of managing day-to-day compliance – given their limited resources.  

Compliance is Just the Beginning 

This is where AllMyHR can make a big difference for small businesses. Our Guided HR Compliance (GHRC) program puts a dedicated team of HR experts, powered by our software and content, in your back pocket. With GHRC, your experts get to know you and your business, and can make sure your HR program is designed to meet your business objectives. 

The foundation starts with compliance, including fundamentals like onboarding a new employee through the I-9 process, updating an employee handbook, implementing state-mandated training, building job descriptions, or reviewing exempt and non-exempt employee classifications. 

Once the foundation is in place, your HR Advisor will help you implement leading practices to take your organization to the next level. This includes creating career ladders, establishing a pay and benefits scale, updating key processes like onboarding, or supporting investigations. 

HR and Compliance Made Simple 

If any of that stuff was easy, it would just be a checklist. But this level of customization and engagement requires a detailed understanding of each situation, each business, and each challenge. GHRC helps you build on your HR practices, pairing our expertise with your passion and creativity. Whether your goal is to sleep better at night, address some or all of the Healthy HR building blocks, or to meet your own objectives, GHRC can help you get there. 

We see the difference HR expertise makes in our clients’ businesses every day, and our recent survey data shows just what a big impact it can make. I can’t imagine a stronger business case for investing in HR. To learn more about Healthy HR and how GHRC can help you, schedule a brief conversation to discuss Healthy HR

Discrimination is often harmful, jeopardizing people’s jobs and careers, adding to their stress, and putting their health at risk. Employers who engage in or tolerate unlawful discrimination can face devastating lawsuits.

A hiring manager, eager to fill an exciting new role in the company, reacquaints himself with a candidate’s resume as that candidate takes a seat across from him. Looking up, the hiring manager jolts involuntarily, surprised to see a gray-haired man likely in his late 50s—a much older person than he had envisioned for this cutting-edge job. While the interview goes well, the hiring manager feels that the candidate’s age makes him a bad fit.

Elsewhere, a vice president ponders which project manager would be the best person to assign responsibility for the development of a new feature on the company’s signature app. Contingencies aside, the choice is clear: Mikalah has had far and away the most success of anyone on the team and is eager to jump into this new assignment. But Mikalah announced last week that she’s pregnant, and while she hasn’t yet requested leave, the VP assumes Mikalah won’t be able to do as good a job this time around. After a moment’s consideration, the VP opts to assign the project to Doug.

After receiving complaints about unequal pay, an HR director conducts a pay audit of their workplace, discovering that the complaints have merit. By and large, men in the company are paid more than women, and in many cases, the disparities seem to be based only on gender. Merit, seniority, and productivity didn’t seem to enter the equation.

Each of these scenarios illustrates what discrimination can look like in the workplace. Discrimination occurs when people are treated differently or less favorably; it becomes illegal in the employment setting when it’s because a person belongs to a protected group.

Discrimination is often harmful, jeopardizing people’s jobs and careers, adding to their stress, and putting their health at risk. Employers who engage in or tolerate unlawful discrimination can face devastating lawsuits.

Antidiscrimination Law

Under federal law, it is illegal for an employer to discriminate against an applicant or employee based on age (40 or older), disability, genetic information, national origin, race or color, religion, and sex (including pregnancy, gender identity, and sexual orientation). These are called protected classes. Federal law also prohibits discrimination against an individual who complains about discrimination, files a charge of discrimination, or participates in an employment discrimination investigation or lawsuit.

Federal antidiscrimination laws include, but aren’t limited to, the Age Discrimination in Employment Act (ADEA), Equal Pay Act, Genetic Information Nondiscrimination Act (GINA), Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964 (including the Pregnancy Discrimination Act). You can learn about the requirements of these laws, what exactly they prohibit, and the employee counts at which they apply on the platform.

State laws may offer additional protections to employees as well. For example, a number of states have amended their employment discrimination laws to specifically define race as including traits associated with race, including hair texture and protective hairstyles. Information about these laws is also available on the platform.

It’s worth noting that discrimination doesn’t have to be deliberate to be unlawful. Discriminatory outcomes, intentional or not, can put your organization in a world of hurt.

Types of Unlawful Discrimination

Unlawful discrimination will generally fall into one of the following categories:

• Unfair treatment, which occurs when an employee or applicant is treated differently than others who are similarly situated because of a protected class or protected conduct.
• Disparate impact, which can happen when a neutral employment policy or practice disproportionately impacts persons within a protected class.
• Failing to undertake certain actions prohibited or required by law. For example, failing to reasonably accommodate a known disability of an employee or applicant.
• Harassment, which is unwelcome conduct that is based on a protected class. This includes sexual harassment. Harassment becomes unlawful when either enduring the offensive conduct becomes a condition of continued employment or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
• Retaliation, which is punishing an employee (or treating them unfavorably) for complaining about job discrimination or assisting with a job discrimination proceeding, like an investigation or lawsuit.

The best way to avoid discrimination is to base employment decisions only on factors that are job related.

Responding to a Complaint

If you receive a complaint that an employee has violated your discrimination policy, conduct a complete and well-documented investigation into the allegations. Assume neither guilt nor innocence and make no promise of a particular outcome. Speak with the employee who made the complaint, the accused employee, and any witnesses they name. Ask open-ended, non-accusatory questions.

Once the investigation is complete, document your conclusions and actions taken. If you determine the accused employee did in fact violate the company’s discrimination or other workplace policy, take the appropriate disciplinary measures, which, depending on the severity of behavior, may include termination of employment. A memo summarizing the findings should be placed in the accused employee’s file.

It is then important to inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action was taken. In some situations, it may be advisable to separate employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.

Companies that do not make changes substantial enough to eliminate discrimination once they become aware of it face greater liability in the event of future issues. You can help reduce risk related to discrimination complaints by conducting a quick, thorough, fair, and well-documented investigation, followed by steps to minimize the risk of such actions happening in the future.

There has been a buzz of late regarding a growing portion of the US workforce that is being tagged as “Quiet Quitters”. Are you familiar with the term? 

It refers to those who purposely restrict their productivity to the absolute minimum, because “work is not their life.” It’s about “quitting” the idea of going above and beyond at work because they feel their “worth” is not defined by their productive output.

If you have employees who purposely are performing at “minimum” level; you can be assured, they are having a negative effect on those that work around them. Let’s face it, who wants to work with someone who does the “minimum”? People feel better when they work alongside high-performers and winners. They’d prefer not to associate with “slackers and losers”.

When employees perform at the “minimum,” they certainly aren’t motivated to learn more about your business, gain new skills or experiences that are essential to your company’s growth and the employees future opportunities. 

Knowledge is the key to both Personal and Professional Growth especially with today’s Generation X employee’s, yet still, too many employers have no formal training. Some business owners fear that if they invest in training and the employee leaves, they will have wasted their money. Perhaps a bigger concern might be that you never formally train an employee, and they stay!

What’s the best course of action?

Today’s employees have likely grown up with both parents working and are used to getting things done on their own. They tend to be independent problem solvers and self-starters. They want support and feedback, but they don’t want to be controlled. They are technologically literate, familiar with computer technology and demand quick access of Internet and the Web as their sources for locating information. They expect to be the recipient of legitimate training.

WAYS OF LEARNING

Life experiences shape the way people learn. The characteristics shared by many of today’s employees offer insight into new ways of learning and highlights the need for new approaches to teaching. To have maximum effectiveness, these programs should always “recognize quality of life needs”, promote innovative thinking, and provide skills enhancement.

• Today’s employees are conditioned to expect immediate gratification. They are responsive, crave stimulation and expect immediate answers and feedback.

• They know that they must continue to learn to be marketable and are lifelong learners. They do not expect to grow old working for the same company, so they view their job environments as places to grow. They seek continuing education and training opportunities; if they don’t get them, they seek new jobs where they can.
  
  

NEW TEACHING STRATEGIES

Managers and Supervisors must be aware of the need for continual updating of their own teaching skills and practices. Effective instruction requires the manager step outside their realm of personal experiences into the world of the learner…. It is the learner who must be engaged, for learning to occur and the learner must make the commitment to learn. 

Engaging learners in projects that demand new skills and the application of existing skills to new situations. Challenge them to construct knowledge from their experiences by connecting course learning to worksite applications. Keeping them engaged, learning new skills, and satisfying their appetite for growth keeps them challenged, enthusiastic and on your team.

So how is your company’s LMS program performing (Learning Management System)? It is not unusual for many Companies that we encounter to not have a system at all. There are typically 3 deterrents: 1) Too much Administration, 2) Too much Time Required and 3) Too Expensive!

 Experts agree that it is difficult to grow effectively without some sort of Training System. AllMyHR is delivering State of the art, quality Training to employers at a critical time and for a nominal cost!

Check out how you can help your employees become more engaged, more productive and help them realize their professional growth within your organization. 

Temperatures are getting higher every year. Long-lasting heat waves are becoming more and more common. For anyone who doesn’t work somewhere climate controlled, these widespread temperature increases can be dangerous. All of this underscores a need to focus on heat safety.

In 2019, 43 work-related fatalities occurred due to heat exposure, according to the U.S. Bureau of Labor and Statistics. In fact, between 2011 and 2019, BLS reports that 144 workers died from heat exposure in construction, repair, or cleaning. Another 54 workers died while conducting materials handling operations in extreme heat. In 2016, according to Safety+Health magazine, nearly half of all jobs required working outdoors. That’s a lot of people working in hazardous conditions.

Protecting employees from extreme heat is just as important as protecting them from sharp objects or car accidents. It really could save lives. In fact, OSHA states that employers must provide a workplace free of known hazards, and this includes extreme heat.

But the world can’t grind to a halt simply because it’s hot outside. This is especially true in places where it’s always hot outside. So how can you help make sure your employees stay healthy and safe?

COVID-19 put employee safety at the forefront of many businesses’ priorities. Heat safety should be no different. A safe work environment has become more important than ever. A safe workplace gives employees a lot less to worry about. They can instead focus on contributing their best and being productive each day. A focus on heat safety isn’t just about comfort. It’s about giving your employees clearance to feel safe and valued.

Defining Heat-Related Illness

So, what exactly causes a heat-related illness? According to OSHA, in a warm environment the body relies on heat dissipation to cool itself. Normally this happens from sweat evaporating off the surface of the skin. This is especially important for people who have active, strenuous jobs. And as everyone knows, you can accelerate heat dissipation by moving somewhere cool, like to a shady spot.

However, without adequate heat dissipation, internal body temperatures can rise to dangerous levels. Over time this causes thirst, irritability, cramping, rash, or heat exhaustion and heat stroke. Signs of heat stroke include confusion, slurred speech, and unconsciousness. Anyone noticing these symptoms in a fellow employee should call 911.

According to the CDC, heat can also increase the general risk of injury in workers. It can lead to foggy safety glasses or goggles, sweaty palms, and dizziness. Burns can also occur as a result of contact with hot working surfaces.

It’s paramount that employees and managers watch out for each other while on the job. Being able to recognize the signs and symptoms of heat stress is so important. Safety+Health magazine has some tips on how to recognize and treat heat stress in a fellow employee.

Symptoms of Heat Stress:

• Feeling faint or dizzy
• Excessive sweating
• Cool, pale, clammy skin
• Nausea or vomiting
• Rapid, weak pulse
• Muscle cramps

Treatment:

• Get to a cool, air-conditioned space
• Drink water if fully conscious
• Take a cool shower
• Use a cold compress

Heat stroke symptoms:

• Throbbing headache
• No sweating
• Body temperature above 103° F
• Red, hot, dry skin
• Nausea or vomiting
• Rapid, strong pulse
• Loss of consciousness

Treatment:

• Call 911
• Take immediate action to help cool the worker until help arrives

For more information on other heat-related illnesses, review OSHA’s heat stress guide.

The Official Guidance on Heat Safety

OSHA states that dangerous heat exposure can happen indoors or outdoors and during any season. Millions of U.S. workers are at risk of dangerous heat exposure in their workplace. This affects both outdoor and indoor occupations as well. Outdoor workers are at special risk, including agriculture, construction, mail delivery, oil, and landscaping workers. For indoor workers, there is heightened risk in bakeries, kitchens, mills, fire service, manufacturing, and more.

For example, according to NBC News, U.S. farmworkers are 20 times more likely to die from a heat-related illness than workers overall. Currently, farmworkers labor through an average of 21 unsafe working days when the heat index reaches above 84° F. As temperatures continue to rise, this figure is expected to grow. Therefore, lawmakers are calling on OSHA to enact an enforceable standard to protect workers from the heat. Currently, OSHA only has regulations and recommendations.

But you don’t have to wait for OSHA to act to make your workers safe. Employers can act on their knowledge about the dangers of heat exposure. They have the power to enforce higher standards to protect workers and be aware of the dangers they face.

This isn’t as simple as saying you can’t let people work outside if it’s hot. It means maintaining awareness of the factors that contribute to heat stress. For example, if workers are wearing clothing that holds in body heat and reduce heat dissipation, that’s a risk. Environmental factors like sunlight and humidity can also contribute to it. Artificial heat sources like machinery, ovens, etc. are also a factor. Lastly, location plays a big part too. Are your workers in a confined space with an oven? Are they working outdoors without shade on a paved surface?

Preventative Measures

Whether the heat is natural or artificial, it can be tricky to know when things have arisen to a point of concern. Fortunately, OSHA recommends this device to measure heat stress in any environment.

Prevention and planning are your best friends when thinking about safety. That’s as true for heat stress as it is for any other kind of injury. Workers new to a job or not yet acclimated to hot weather are at heightened risk. They don’t expect the toll the heat can take on their bodies. Nor have they built up a tolerance to it.

In 2012 and 2013, 17 out of 23 workers who died from a heat-related illness were in their first 3 days of work. Eight workers died during their first day on a job.

Acclimating employees to a hot environment matters. Safety+Health reccomends caps on workloads for new employees, or those returning from time away. It’s recommended they do 20 percent of an average day’s work when they return and increase a little each day. Each increment should be no more than 20 percent.

When a heat wave sets in, employers and managers should follow a similar rule. At the start of the wave, have workers perform just 50 percent of their work that first day. Bump it up to 60 the next day, and 80 the next. This allows a workers’ body to build a tolerance to the heat. It will let them get used to performing routine tasks, such as lifting objects, that might be hotter than normal. Managers should not expect their employees to always output at 100 percent in extreme conditions.

Maintaining a Focus on Heat Safety

Although acclimatization is crucial, there are some other ways to prevent heat-related illnesses in your workplace. In 2005, California set a heat standard for outdoor workers. Their standards included the following recommendations for helping to mitigate heat-related illnesses:

• Having clean, cool water available for workers
• Offering shaded areas for when temperatures exceed 80° F
• Ensuring at least a 10-minute rest break every two hours when temperatures reach 95° F
• Promoting consumption of 4 cups of water per hour
• Rescheduling hot jobs for cooler hours of the day, such as before sunrise
• Monitoring workers wearing clothing that does not allow for much heat dissipation

Guidance for Managers

This guidance is simple for managers and team leads to incorporate each day. There are also ways to decrease the chance of heat-related illnesses on the job with engineering controls. According to OSHA, there are a few ways employers can mitigate heat-related illnesses:

• General ventilation dilutes hot air with cold air and is usually a more cost-effective option. An installed ventilation system can handle entire buildings. A portable exhaust system can be effective in smaller areas.
• Air cooling systems reduce the temperature of the air by removing heat (and humidity) from the air. These include air conditioning and local air cooling. Local air coolers are more cost effective and can reduce air temperature in specific areas. Some workplaces have a designated “cool room” in a nearby area for recovery from hot jobs. Another way to reduce heat stress is by placing fans in a workspace to cool workers. However, fans are only effective if the air is already cooler than the workers’ skin (less than 95° F).
• Heat conduction blocking includes insulating hot surfaces that generate heat and changing the surface itself. Simple devices like shields can be used to reduce radiant heat.

Recommendations from OSHA

In addition to improving a worksite, employers should provide PPE to workers to help prevent heat stress. OSHA recommends the following PPE:

• Reflective clothing can reduce the amount of radiant heat reaching the worker. However reflective clothing only works if it still allows for heat dissipation and sweating. Reflective clothing should be worn as loosely as possible to allow for sweating and evaporation.
• Auxiliary body cooling ice vests can be heavy, but they can hold up to 72 ice packs. The cooling can last 2 to 4 hours depending on the heat load. They require frequent replacement as the ice melts, but they’re simple to replace and relatively inexpensive. OSHA also states that ice vests allow for maximum mobility and do not encumber the worker.
• Wetted clothing is another simple and inexpensive personal cooling technique. It’s especially effective when used with reflective clothing and with good air flow and low humidity.
• Water-cooled garments range from hoods, vests, or “long johns” which allow for partial or complete cooling. This equipment requires a battery-powered pump, a liquid-ice coolant, and a container. It limits the mobility for the wearer so this may make this option better for low-activity jobs.
• Circulating air is the most highly effective, yet most complicated, personal cooling system. It directs compressed air around the body from a supplied air system. This improves both evaporative and convective cooling. Circulating air, however, is noisy and requires attachment to an air hose for a constant supply of compressed air. This can limit the worker’s mobility. In addition, because the air circulation feels cool, workers may not drink enough water while using this method.

Communicating a Focus on Heat Safety

You should talk about heat-related illness regularly with your teams. This is true of every workplace, but especially so if you have people working outside. OSHA has some tips on discussing heat safety with your employees:

• Know the hazards of heat stress
• Recognize predisposing factors, signs, and symptoms
• Be aware of first aid procedures, and the potential health effects, for heat stroke
• Understand employee responsibilities in avoiding heat stress
• Know the dangers of using drugs, including therapeutic drugs, and alcohol in hot working environments
• Require the use of the correct PPE

Personal Risks to Focus on for Heat Safety

Workers should be conscious of the risk of heat-related illnesses on the job. There are a number of factors that can increase the risk for heat-related illness. OSHA cites these personal risk factors:

• Obesity
• Diabetes
• High blood pressure
• Heart disease
• Lower level of physical fitness
• Use of certain medications such as diuretics and some psychiatric or blood pressure medications. Some medications limit an individual’s ability to sweat, minimizing a key sign of heat stress
• Alcohol use
• Use of illicit drugs such as opioids, amphetamines, or cocaine

Employers should recognize that not all workers can tolerate the heat in the same way. Workplaces should focus on making jobs safe for all employees. OSHA recommends workplace medical monitoring programs. These can identify workers who are at an increased risk of heat stress while maintaining their privacy.

Wrapping Up

There are many ways to help increase a focus on heat safety. You can make simple changes during a workday, like more effective PPE. You could also pay closer attention to air cooling in your work environments. Making heat safety top-of-mind for your employees helps them see risks at work and among their coworkers. Keeping your workers safe should be your top priority. Keeping an eye on heat safety will ensure that your employees stay healthy, happy, and productive in the future.