BOP Newsletter Spring 2020

BOP NEWSLETTER • Spring 2020

The Coronavirus Pandemic: Leadership

by Katherine Eitel-Belt

A wonderful colleague of ours is Katherine Eitel-Belt. Many of you no doubt know of her through her company LionSpeak. Each week, Katherine sends out her “Monday Morning Stretch” newsletter. Below, with her permission, we are reprinting her recent March 16th article, which we felt was timely and provided some nice insights, perspectives and challenges. If you want to receive Katherine’s “Monday Morning Stretch”, simply follow this link and sign up—it’s free

Monday Morning Stretch:  Coronavirus and Leadership

If you’ve been a subscriber to our Monday Morning Stretch for any length of time, I hope I have inspired you to be consistent in your effort to grow and strengthen your personal leadership skills. If you’ve done so, then you know already that you must first up-level your own mindset and leadership thinking prior to elevating your ability to speak from a strong leadership platform. You’ve been practicing mindfulness in your leadership thoughts, actions, and communications. You know that your actions, reactions, decisions, and all that you speak into existence is 100% within your control.  

So, now the BIG question: Exactly what do you think all this work and attention was preparing you for? Well, it wasn’t for the best of times. It was for the worst. It was for when we find ourselves in our next crisis. In this case, COVID-19. What you have prepared for is here.  

This is where leaders like you suit up, rise from the bench, and take the field. This is what you’ve been training for. This is where leadership takes action. This is when it is needed and where it counts the most…When we and everyone around us are engulfed in a crisis, real or imagined.  

Fear makes people do strange and abnormal things. But leaders know that they will never make their best decisions or speak most persuasively from fear. Great leaders have practiced monitoring their thoughts and directing them toward ideas that are helpful, hopeful, strong, and consistent with their core values.  

Now is our time. This is exactly when people who have not been practicing these skills will need us to rise and take the lead for them. And, we can.  

Here’s a reminder of our marching orders as Leaders of our Pride:  

  • When others speak of fear, reply gently with hope. 
  • When others panic, bless them and respond with calm and thoughtful action. 
  • When others are consumed with doom, think about and speak of the evidence of resiliency, creativity, and our ability to thrive against the odds. 
  • When others feel unstable, insecure, and disempowered, remind them of their limitless personal power and the heart of the warrior within. 
  • When others fill their ears, eyes, and minds and drain their reserves with increasing evidence of failure and fear, fill your reservoir with all the available evidence of success, compassion, and adaptability.  
  • When others take on the cloak of rigidity and fragility, be the example of fluidity, flexibility and quiet, sure strength.  
  • When others see no available options before them, remind them of the sweetness of freedom and the powerful nature of choice.  
  • When others feel despair, sit with them, love them, and show them they are not alone.  

This is how we show up as leaders. We hold the space of those who have not developed the tools. We help guide those who are on the path with us. We choose carefully those from whom we accept counsel and humbly receive what we need from them in order to continue the good work we have been called to do.  

For LionSpeak followers and members of our “Pride,” join me in selflessly, humbly, and totally stepping into the leadership position which calms those who are frightened, balances those who are spinning out of control, and gives hope and strength to those who feel disempowered, pessimistic, and weak. 

They need us now. And we’re ready.  

 “Optimism is a duty. The future is open. It is not predetermined. No one can predict it, except by chance. WE all contribute to determining it by what we do. We are all equally responsible for its success.” -Karl Popper

BOP NEWSLETTER • Spring 2020

The Coronavirus Pandemic: Looking Forward

by Tim Twigg & Rebecca Boartfield

We are, by now, deep in a challenge that is unlike anything before, at least in most of our lifetimes, thanks to COVID-19. The impact is huge, and making the right decisions while setting the stage for the future is on everyone’s mind.

Where do you stand in this situation? Are you still working? Are your employees on reduced schedules? Have you laid everyone off? The decisions have been tough to make, and everyone’s approaching it a little differently based on their individual business and ability to keep things going forward. 

We thought this might be a good time to refresh some of the resources out there that can help provide guidance on these issues. We don’t know about you, but so much information has been flying around that it is hard to keep straight! Below you will find some links to these resources.

While it’s important to keep informed about the current situation, it’s not a bad time to start looking forward either. That can and should mean business considerations regarding reopening and resuming work again. That should also mean figuring out how to handle something like this again in the future. 

We were all caught off-guard with this pandemic. We were unprepared for how to manage this right from the get-go, and that lack of planning really hurt us all in very different ways. That cannot be the excuse next time, and there will be a next time. If this has taught us anything, it’s that a plan of action is priceless, and you can easily use this experience to build that plan going forward. 

Imagine how you might have been able to successfully lead your employees and your business if you knew just a smidgeon of what you know now. Simple questions would’ve been made easier, employees would’ve felt calmer, and you would’ve been at your best even when faced with the worst. Successful leaders will take this moment, learn from it, and build a better plan of action for next time. 

Everyone should take this moment to develop a pandemic plan that should include, at a minimum, the following information:

  • Attendance: provisions for requiring staff to take time off work
  • Paid time off: availability of paid time off benefits or other compensation methods for employee time off
  • Medical exams: informing employees of the potential to require a medical exam before returning to work if they’ve been out sick
  • Leave of absence: state or federal laws that may be applicable and the policy to adhere to for those leaves
  • A statement prohibiting discrimination of any kind, especially for disabilities, and notifying employees of your agreement to reasonably accommodate an employee with a disability as mandated by law
  • Hygiene protocol for everyday safety measures as well as during a pandemic such as hand washing and covering mouths when coughing 
  • Shutdown procedures or evacuation plans if necessary
  • Communication expectations when employees are unable to report to work or notice symptoms within themselves or with close relatives or friends
  • Personnel protective equipment available for use

This is not an all-inclusive list. You may want to discuss patient or client care, working from home, layoff protocols, and much more. Look back on these last 3-4 weeks, what was missing? What was asked of you? What did you not know? Pinpoint it. Answer it. Write it. Then let your employees see it and ask questions as needed. The plan won’t work if your employees are not properly informed. Be sure new employees get the same information going forward. 

Don’t let lack of preparedness sidetrack your business when viruses, bugs or other nasties affect your employees and your business. Take control of the situation and manage your employees effectively. Now that you know what you can do to be prepared, you have no excuse not to act responsibly and more confidently in the future.


Resources:

Bent Ericksen & Associates Coronavirus Web Page: https://bentericksen.com/coronavirus-faqs/

The federal Department of Labor Web Page for Stimulus Bill Information: https://www.dol.gov/agencies/whd/pandemic

The Internal Revenue Service Web Page for Tax Relief Information: https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs

The U.S. Department of Health and Human Service for HIPAA Information: https://www.hhs.gov/hipaa/for-professionals/special-topics/hipaa-covid19/index.html

The American Dental Association: https://success.ada.org/en/practice-management/patients/coronavirus-frequently-asked-questions 

YOU ASK, WE ANSWER

Q: We have someone inquiring about a paid or unpaid internship at our office, to get experience in the dental field. Is there such a thing as an unpaid internship, or are we required to pay the person for their time if we let them intern? What documentation/paperwork should we require of the individual? Are there limits on the number of hours they can intern?

A: The short answer is that paying for the internship is probably best. It is difficult to pass the “test” for unpaid internships and can create legal problems if not handled correctly. Therefore, we advise hiring the individual as a temp and paying minimum wage for all hours worked. It’s a relatively low-cost way to protect the business. 

If you want to try the route of unpaid internships, here’s the federal criteria that must be met:

Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the Fair Labor Standards Act (FLSA). In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.

If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.

Q:  I would like to end one of my employee’s employment sooner rather than later. I’m in Virginia. The reason for the termination is due to her poor performance in her job duties, and I’m not sure I can trust her. Anyway, my problem is that she’s not in the office at the moment. She left for vacation and then her travel plans got messed up with the current pandemic. Right now, she can’t get back home. I don’t want her back in the office. The next time I speak with her, can I terminate her employment via Skype or telephone? Or does it have to be face-to-face?

A: Currently there is no law that requires employers to conduct terminations in person. In this day and age, they can be done on the phone, via Skype, through email, etc. Technology has greatly expanded these options. Most HR professionals will probably still prefer face-to-face. Not only is it seemingly more professional to do it this way, but it can also head off problems with other laws.

Most states have rules regarding when an employee’s final paycheck is to be issued after termination. While your state allows for it to be provided at the next payday, other states are more restrictive and require it immediately upon informing the individual that employment has ended. 

There may also be documentation requirements as well. Some states require a termination to be put in writing or for certain pamphlets to be issued informing the individuals about government programs that may help them now that they’re terminated. These things generally need to be provided immediately.

A termination over the phone or via Skype may result in noncompliance with these other regulations which could also lead to liability. Therefore, it is best to prepare for the termination in advance by securing everything that is required first and then inform the individual. 

You mention the pandemic as a reason for her inability to return to work. Please be sure you’ve got the performance issues well-documented. Lawsuits over actions taken by employers in this crisis are likely to happen for one reason or another. If this happened, you will want to be sure you can show this termination had nothing to do with the pandemic issues she was facing and everything to do with performance. 

Q: One of my employees who is currently laid off due to the pandemic and subsequent office closure is asking if I would consider hiring her as an independent contractor. She is an administrative staff person, and I could use her help. I don’t want to mess up her ability to receive unemployment benefits, especially since I don’t have that much work for her to do. Is this an option for me to consider? Please let me know your advice.

A: This is not a legally viable option. The current rules regarding independent contractors mean that she will not qualify as one. The law does not allow for employers to arbitrarily switch between employee and independent contractor at-will. Individuals may only qualify as independent contractors if both federal and state criteria are met, which is not easily done. The relationship with this employee would have to dramatically change in order to even consider this as a possibility. 

If you need her help and she wants to work, then you can do that, but it would be the same as your normal employee-employer relationship that you’ve had all along. 

Employees working reduced hours can still receive unemployment benefits in most states. I would encourage you to look at your local unemployment insurance program’s website to learn about this. These departments will often state how much an employee can work and still get unemployment compensation. Once you know that, you can have her work within those restrictions.

Q: We have an individual we are getting ready to hire, and she is someone who could start this week. She mentioned that she recently had surgery (not sure of the details) but is comfortable starting now.

Do we need to get any kind of doctor’s note from her, or is this unnecessary since she is a brand-new hire? Can we get a release to work even though she’s not returning to work for us?

A: While you could take this further and possibly request that information, that’s not the path we would recommend. A path to obtaining more medical information at this stage would involve a conditional offer of employment and a medical exam that is paid for by your business. This can become messy and open up areas for liability, therefore, it should only be done with much caution and consideration. 

Hopefully you asked this individual to complete an application for employment, and hopefully that application includes the following question: Can you fulfill the job duties and responsibilities of the position for which you are applying as they have been described to you, with or without a reasonable accommodation?

If you had this person complete this application and she marked yes, then I would move forward with that being the case. At this point in the game, that’s the most you can really ask without a conditional offer and medical examinations as mentioned above. 

As an added step, you could issue her a job description of the job she may get with you and have her review it. After reviewing it, if she agrees to the job description, you could have her sign something acknowledging acceptance of the job description if she were to be hired.

Did You Know?

Employees May Sue Employers Under the Medical Marijuana Act in Pennsylvania?

In Pamela Palmiter v. Commonwealth Health Systems, Inc., Civ. Action No. 19 CV 1315 (Pa. Ct. C.P. Lackawanna County, Nov. 22, 2019), a Pennsylvania state court held that the state’s Medical Marijuana Act (MMA) creates a private right of action for medical marijuana users to sue their employers. 

In this case, the court held that the MMA provides that “[n]o employer may discharge . . . or otherwise discriminate or retaliate against an employee . . . solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” 

The Pennsylvania court stated that “[w]ithout the availability of an implied right of action for an employee who is fired solely for being certified as a medical marijuana user, the anti-discrimination directive in [the MMA] would be rendered impotent.”

The court also held that the termination “implicates a clear mandate of public policy” because the law prohibits employers from using an employee’s status as a medical marijuana user as a basis for termination.

While this case is not binding on all other courts in Pennsylvania, employers should consider carefully all adverse employment decisions involving medical marijuana users.

Virginia Passed a Law Defining Racial Discrimination to Include Hairstyles?

On March 4, 2020, Governor Ralph Northam signed an amendment to the Virginia Human Rights Act, Virginia Code Section 2.2-3901. While the Virginia Human Rights Act defines “because of sex or gender” or “on the basis of sex or gender,” Section 2.2-3901 failed to define or elaborate on the meaning of “the basis of race.” The new law (SB 50) provides:

The terms “because of race” or “on the basis of race” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.

The new law will go into effect on July 1, 2020.

Washington Amended Its Paid Family and Medical Leave Act?

The significant changes are as follows:

  • Now includes a private right of action in court for an employee claiming interference, retaliation, or discrimination under this law. 
  • Defines “supplemental benefits” as all payments made by an employer to an employee as salary continuation or as “paid time off.” This includes vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.
  • An eligible employee may satisfy the waiting period requirement while simultaneously receiving “paid time off” for any part of the waiting period.
  • Expands the definition of “family member” to include a child’s spouse.
  • The law previously disqualified from eligibility an employee receiving workers’ compensation, but the amendment limits this disqualification to those employees with permanent total disability or temporary total disability.
  • Changes the test for receiving a conditional waiver from paid family leave premiums. Previously, the employee would have to be “physically based” outside of Washington in order to qualify for a conditional waiver of premiums for that employee. Now, the question is whether the employee “primarily performs work” outside of Washington.
  • The law formerly provided that successive periods of paid family leave caused by the same or related injury or sickness were deemed a single period of family and medical leave only if separated by less than four months. This requirement has been removed.
  • The amendments specify the child support obligations that would lead to a paid family leave benefit deduction.
  • When an employer’s voluntary plan ends or is withdrawn, the employer must pay the Employment Security Department all required premiums including any premiums owed that were not covered by the voluntary plan, if any.

Some of these amendments went into effect immediately, while others will go into effect on June 11, 2020. 

WHAT’S NEW in Employment Compliance

New York

Statewide Sick Leave Effective September 30, 2020

On April 3, 2020, New York State Governor Andrew Cuomo signed a comprehensive budget bill that, among other things, amends the New York Labor Law to require all New York employers to provide paid or unpaid sick leave to their employees. The following summarizes employers’ obligations under the new law:

Employer Type

Employee Leave Entitlement

4 or fewer employees in any calendar year and
a net income of less than $1 million in the previous tax year
At least 40 hours of unpaid sick leave in each calendar year
4 or fewer employees in any calendar year and
a net income of greater than $1 million in the previous tax year
At least 40 hours of paid sick leave in each calendar year
Between 5 and 99 employees in any calendar year At least 40 hours of paid sick leave in each calendar year
100 or more employees in any calendar year At least 56 hours of paid sick leave in each calendar year

Accrual begins upon the effective date of the law, but employees cannot use accrued time until January 1, 2021.

New Jersey

Leave for Organ and Bone Marrow Donation Effective May 20, 2020

The Temporary Disability Benefits Law has been amended to provide job-protected leave during a “period of disability” resulting from donating any organ or bone marrow. 

This is an interesting twist since the Temporary Disability Benefits Law does not expressly guarantee job security for other reasons. As amended, job-protection is extended in this very specific situation of organ and bone marrow donation. Job protection means that an employee must be restored to the former position at the time the disability commenced or to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment.

It appears that to be eligible for benefits under the Temporary Disability Benefits Law, employees must work 20 weeks earning at least $200 weekly or have earned a combined total of $10,000 in the base year (defined as the first four of the last five completed calendar quarters before the employee files a claim). If eligible, employees may receive up to 26 weeks of benefits, which could mean employees are now entitled to up to 26 weeks of job-protected leave if the reason for the disability is the donation of any organ or bone marrow.

New Jersey

Expanded Information Requirement for Wage Statements Effective May 20, 2020

The current Wage Payment Law requires every employer to furnish each employee a statement of deductions from wages for each pay period the deductions are made. The new amendment provides that, in addition to the statement of deductions, employers with at least 10 employees must provide the following information:

  • The employee’s gross wages;
  • The employee’s net wages;
  • The employee’s rate of pay; and
  • If relevant to the wage calculation, the number of hours worked by the employee during the pay period.

This, along with the statement of deductions, must be provided to employees each pay period. The law allows employers to provide the statement to employees electronically, unless the employee requests the statement be provided in paper format.

Chipotle Pays $95K to Settle Male Employee’s Sexual-Harassment Claim

The California-based employee said he endured pervasive verbal and physical harassment from his female supervisor who allegedly propositioned him for sex, touched him inappropriately, and posted a “scoreboard” to track workers’ sexual activities. He said he quit when his claims weren’t properly addressed.

In addition to the monetary settlement, Chipotle has agreed to create additional harassment-prevention policies, procedures and training programs for 27 restaurants in Northern California. The new practices are intended to improve accountability and oversight of managers, supervisors and employees. Chipotle also must track sexual-harassment and retaliation complaints, report them to the Equal Employment Opportunity Commission (EEOC) and post a notice to employees about the company’s agreement with the EEOC and employees’ rights under federal anti-discrimination laws.

Uber Agrees to Pay $4.4M to Settle Sexual-Harassment Claims 

The Equal Employment Opportunity Commission (EEOC) launched an investigation in 2017 and found evidence that Uber violated Title VII of the Civil Rights Act of 1964 by tolerating a culture of sexual harassment and retaliation, according to an agency announcement. Under the agreement, the ride-hailing company will set up a class fund of $4.4 million to compensate victims for sexual-harassment and related retaliation that occurred after Jan. 1, 2014.

“We’ve worked hard to ensure that all employees can thrive at Uber by putting fairness and accountability at the heart of who we are and what we do,” said Uber Chief Legal Officer Tony West. “I am extremely pleased that we were able to work jointly with the EEOC in continuing to strengthen these efforts.”

Uber has agreed to create a system to identify when more than one complaint has been made against an employee and to note when managers fail to timely respond to complaints. Additionally, Uber will work with a consultant to update its policies and will continue conducting employee surveys and exit interviews that address workplace sexual harassment and retaliation. “This resolution demonstrates the benefits of working cooperatively with EEOC and serves as a model for businesses committed to truly leveling the playing field where opportunity is not circumscribed by one’s gender,” said EEOC Chair Janet Dhillon.

Unlawful Pay Practices Dispute Cost Walmart $55 Million

A class of plaintiffs alleged that Walmart did not pay them properly, and a jury ruled in the group’s favor, awarding $44.7 million for unpaid layovers, $3.96 million for unpaid rest breaks, $2.97 million for unpaid pre-trip inspections and $2.97 million for unpaid post-trip inspections.

The bulk of the dispute centered around the truckers’ layovers. The 9th Circuit noted that under California and federal law, truckers must take breaks. Time spent on layovers can’t be interrupted; otherwise, these 10-hour rest periods begin anew.

Walmart argued that it couldn’t be required to compensate drivers for rest periods when state and federal law compel drivers not to work during those breaks.

“Walmart’s argument has logical appeal, but it does not follow California law,” the 9th Circuit panel stated. “In California, an employer must pay minimum wages whenever it controls the employee. And there is no reason to think that … an employer cannot exercise control of a trucker even when the driver is taking a legally mandated break.” 

“The decision reaffirms that California employers must pay for all time employees work, which includes all time under the employer’s control,” said Michael Rubin, an attorney with Altshuler Berzon in San Francisco, who represented the plaintiffs.

“When California employers pay workers by the piece, by the job or by the mile, they need to make sure they also pay separately for mandatory paid rest breaks under California law,” he said. “Any employer that imposes nontrivial restrictions on its workers’ freedom of movement or activity during break time or other supposedly off-duty time must pay the workers for that time or run the risk of substantial back-wages claims.”

Federal Court Chooses Reliable Attendance and Rejects Suit Claiming the Americans with Disabilities Act Requires Accommodation of Unpredictable and Unplanned Absences

Recently, an employer prevailed on summary judgment over claims brought by the Equal Employment Opportunity Commission (EEOC) alleging that the company violated the Americans with Disabilities Act (ADA) after terminating the employment of an individual with too many absences under the company’s no-fault attendance policy. 

Many employers implement “no fault” attendance policies to manage attendance in the workplace. Under these policies, employees receive “points” or “occurrences” for absences, and employment is terminated after employees exceed the maximum allotted absences, regardless of the reason for the absence. Employers must be cautious, however, to consider exceptions that may be warranted under the ADA or other federal or state and local law. The EEOC takes the position that such policies violate the ADA and has repeatedly challenged these policies by bringing charges of discrimination and lawsuits against employers.

In EEOC v. Austal USA, LLC, the charging party employee’s job ended after he had exhausted FMLA leave and paid time off (pursuant to company policy), and then exceeded the number of absences he was allotted under the attendance policy.

When the company moved for summary judgment, it argued that the employee was no longer a qualified individual with a disability because he could not perform the essential job function of attending work regularly. It was undisputed that the employee had to be at work to perform his job; the court therefore agreed that attendance was an essential function of the position.

In response, the EEOC contended that the company should have provided additional medical leave to the employee as a reasonable accommodation. The court rejected this argument, explaining that additional leave would not resolve the issue. The employee’s absences were unpredictable in nature, and he could not follow any work schedule on a regular basis. For that reason, modifying his hours or reducing them would not be effective in allowing him to perform the essential functions of the job. In addition, the employee’s unpredictable absences were likely to be permanent.  If he had been capable of returning to work on a regular basis after a definite amount of time, a different result may have occurred. Accordingly, the court granted summary judgment for the employer.

Although a no-fault attendance policy can simplify attendance discipline, it carries some risk for employers. Employers should closely review their policies and the actual implementation of those policies to ensure compliance with current legal obligations, and should review discipline terminations under these policies on a case-by-case basis – paying special attention to the question of how much unreliability is too much unreliability.  It will vary based on the job requirements, the individual’s attendance record and prognosis for improving reliability, and the possibility of alternative accommodations.