05 Apr BOP Newsletter Spring 2022
BOP NEWSLETTER • Spring 2022
PANIC OR PREPARE?
by Adrienne Twigg
Have you ever awakened in the middle of the night dreading a meeting, a decision that must be made, or a conversation that you anticipate will be difficult, challenging, or contentious? Absolutely, I would raise my hand and say, “guilty as charged.”
Also, how many of us put that “event” off with the thought that we just need time to concentrate on how we are going to approach it, that we will tend to it when we have more energy, or that it will magically resolve itself all on its own?
Often, we actually know and believe that the outcome will be better for all involved once we attend to this “event.” Yet, we still have a tendency to put the “event” off. In effect, we are running from facing the “event.”
We have all seen the Nike tag line printed on tee shirts, posters, billboards, and different ads: “Just Do It.” Aside from the normal advertising hype, I believe Nike is onto something.
Years ago, I heard a speaker relaying a story he heard Zig Ziglar tell during one of his presentations. For those of you who may not be familiar with Mr. Ziglar, he was absolutely a GOAT in communication and sales skills development (for some of us baby boomers who aren’t up on the hip language of today, GOAT stands for “greatest-of-all-time”….and you’re welcome!). Mr. Ziglar could come up with sayings, analogies, anecdotes, and quips better than anyone I’ve ever heard – even to this day.
This particular story involved Zig’s personal friend who lived in Montana and owned a large ranch. This friend had a huge herd of cattle and a huge herd of bison.
Zig relayed an interesting observation his friend made in reference to the behavior of the two different types of livestock his friend raised. Apparently, when a thunderstorm came up and headed toward the ranch, the cows would get nervous and run in the opposite direction of the approaching storm, effectively turning their backs on the storm. However, no matter how quickly they ran, they could not outrun the storm. After the cows became weary and totally exhausted, the turbulent weather would overtake the cows, drenching them through and through; occasionally, there was a fatal lightning strike that would kill one or more of the cows.
For the herd of bison, it was a completely different story. Once the bison sensed the thunderstorm brewing and coming their way, instead of turning and running from the storm in an effort to avoid it, they would put their mighty heads down and proceed directly into the storm. This herd would continue to do so until they were all the way through the stormy weather and coming out into calmer skies and better weather. Make no mistake, the bison did expend energy during the event and they certainly got wet! However, they were able to make it through the storm and reach calmer skies and safety much faster, without the amount of struggle that the cows endured.
This story made me think of how we humans – as leaders, employers, friends, and family – will sometimes run in the opposite direction and turn our backs on situations in an effort to avoid uncomfortable, yet important and pertinent, conversations.
We have two options to consider when facing these important conversations. The first option is to panic, be paralyzed (do nothing), or run from it. It is easy to lose focus and end up pondering all of the “what ifs” of a scenario, allowing our imagination to run wild and lose our way; for example, thinking “what if I have this conversation and <fill in the dramatic outcome your imagination comes up with>?”
It seems our minds can conjure up myriad ways these fictional scenarios could unfold. And, research tells us that these stories we tell ourselves more often end up down the path of a negative ending rather than a positive outcome—yes, the disaster films we play in our heads. It is easy then to find ourselves in the panic mode, and the result is we run, like the cattle, trying to get away and avoid the “storm.”
Two questions that might be helpful to ask ourselves is: what are the risks if I have this important conversation, and also, what are the risks if I do not have this important conversation?
The second option we have is to prepare. This option requires us to have some awareness, thought, action, and sometimes energy in the process. Remember the bison part of the story? The bison were aware of the storm approaching and gave thought about the direction they needed to head. Unlike the cattle, their action was to move toward the storm. The bison did not just decide to lazily meander towards this storm; the bison did quite the opposite and took action to give all they had to give because they knew that is what would put them in a better place.
One definition of prepare is to “make ready or able to do or deal with something.” One way to do this is to gain clarity on what we would like the end result of the conversation to be; what direction do we need to go to achieve this desired result?
One thing is for certain: we can’t resolve something that we don’t address or confront. We can’t run from everything that’s uncomfortable and ignore issues, sweeping them under the rug thinking they’ll go away.
We all face times like these where we have to make this decision. Am I going to keep putting off what I know I should do? Am I going to allow things to continue the way they are, not rock the boat or deal with it, even though it is not working? Or am I going to stop, prepare and then have this difficult conversation?
The problem with ignoring issues is that you are more than likely going to have to deal with it at some point—rarely does it magically just disappear. Why not prepare and have the conversation before things implode, or explode, and become bigger or worse, possibly ending in a “lightning strike” with even more damage?
What we run from, we’ll always have to go back and deal with before we can move forward. The only way out is through. It’s time to stop running. It’s time to confront and resolve. When we actively move towards these difficult conversations, we can focus on doing it properly – with respect and support.
Finally, let’s start viewing these difficult conversations as opportunities to learn and grow. The majority of the time, participants on either side will look back on these conversations, learn from them, and appreciate that the outcome is a better long-term solution for all concerned, which clearly outweighs the short-term impact of having those difficult conversations.
So, which do you choose to be? The cow or the bison?
NOTE: Want to learn some basic communication skills, build some confidence, and gain courage for having these potentially challenging conversations? We are excited to have Katherine Eitel-Belt presenting at our Annual Client Conference, October 7-8, in Denver. This is her area of expertise, and her presentation is titled: “Courageous Conversations: Mastering the Important Conversations You’ve Been Avoiding.” We look forward to seeing you there!
Q: As a dental practice, we often provide dental treatment and care to our employees. When this occurs, they become a patient of the practice, just like anyone else who receives dental treatment from us. As a result, we will end up with records pertaining to employment as well as records for being a patient. Should these records be combined, or should we keep them separate? Is it ok and appropriate to keep the patient health information in their electronic chart, or should we keep it in their HR file, which also contains confidential healthcare information?
A: Their relationship with you as a patient should be separate from the employment relationship. Therefore, when employees are also patients, it is best to keep patient records separate from employee records, even when you may have received health information as part of the working relationship. Any confidential healthcare information that is part of their working relationship (e.g., medical certification for a leave of absence) should be kept in a separate HR file. We do not recommend combining these records into one file.
Q: We are preparing to have a 90-day review with an employee. We met with our consultant and feel that there are some areas that still need improvement. Our consultant advised us to extend her orientation and training period by an additional 60 days. Since this is the first time that we have done this, we want to be sure we are compliant. If we do this, are there any issues we should know about? Would access to all benefits (vacation, holiday pay, in-office dental benefits, etc.) also be delayed?
A: You may extend someone’s orientation and training period. In order for you to make your best decision, here are some thoughts to consider:
- You may only prevent discretionary benefits from being available. For example, you could state that vacation will not begin to accrue and holidays will not be paid. Any benefits that are required by federal/state/local law would have to be applied. For example, some areas require paid sick leave. If that’s the case, this benefit could not be denied, assuming all other eligibility requirements are met. Furthermore, some benefits are discretionary but have certain rules to be followed regardless. For example, a medical benefits plan that allows someone to join after 90-days would have to be followed even if the orientation and training period is not completed or has been extended.
- Some employers are under the misconception that the orientation and training period, and any applicable extensions to it, means something more in terms of employment, termination, and liability. For example, many think it prevents unemployment insurance benefits from being available if employment doesn’t work out, or that no legal challenges can occur if termination is within this time, and other misconceptions. Therefore, it’s important to understand that an extension of the orientation and training only means having the ability to prevent some benefits from being applied, no other special exceptions exist.
- The extension will not impact any other part of the employment relationship. You can issue the review without extending the orientation and training period. You can still provide counseling and feedback. You can still address performance concerns and eventually even end up terminating their employment. The extension is not necessary to manage all of these aspects of employment. If someone completes their orientation and training period, that does not mean their employment is permanent or protected or anything else. It really only means that they might have some access to employment benefits.
If you decide to extend the orientation and training period, be sure you establish this in writing, including clarifying which benefits will not kick in.
Q: I have an employee who has been out sick for three weeks. Her reason for being out has been confusing. At first it appeared to be an ongoing medical condition she has, then it seemed to become COVID-19. Her information has been vague and contradictory. Given everything going on, we asked for a release from her doctor to return to work. This became an issue because she said she was having trouble getting through to her doctor even though she had supposedly just gotten out of the hospital. We believe she could’ve easily logged into her health portal and gotten us what we needed, but she didn’t. Today, she provided a release that looks sketchy. It’s a Telehealth doctor’s note. We think she got this off the Internet for $39.00, and that it is not valid or truthful. How do I handle this?
A: In a situation like this (i.e., there is no definitive proof one way or another), all that can be done is to confront the employee. Explain that you believe she has not been very straightforward, possibly told a falsehood and provided a fake release, and then ask her to explain herself. See how she responds and what she says.
You may or may not get a satisfactory answer or ever truly know whether or not her information was false. This will leave you with the option to either terminate her employment because of the situation, or move forward with her and see how it goes.
Confronting an employee with the idea that they were not truthful is tricky. It is best when there is solid evidence supporting that claim. While the information she shared is strange, as is the fact that she used a Telehealth company for her note, that may be all it is. Therefore, you could certainly chalk this up to strange behavior and not confront her at all with anything, move forward, and see what happens from here.
In general, if I were you, I’d probably let this go and move on without further issue. I’m not sure there is enough to confront her on anything, and confrontation or termination may result in bigger problems.
Q: I have an employee who is close to retirement age. In fact, he has mentioned the possibility of retiring on more than one occasion. Is it legal for me to ask for more than 2 weeks’ notice when someone is going to retire? I want to be prepared for his departure if/when that happens.
A: Yes, you may ask for any amount of notice from those who are leaving regardless of their reason for doing so (resignation or retirement).
Though you may ask for more time, getting people to do that is a whole different thing. In all states except Montana, the employment relationship is “at-will.” This means that it is voluntary in nature and can be ended at any time; therefore, neither party (employer or employee) is required by any law to provide notice. As a result, employers can ask, but employees can ignore it if they want.
Some employers look for ways around this such as implementing some form of punishment if the proper notice is not given. For example, not paying out unused vacation unless 2 or more weeks of notice is given. While this might be legal (depending on the state the employer is in), it may have the effect of eroding the at-will nature of the employment relationship. When that happens, the employer may be limited in their ability to terminate employment at-will. In other words, at-will employment is not one-sided, and it is in the employer’s best interest in the long run to maintain their at-will prerogatives as much as possible.
Department of Labor Announces Higher Consequences for Noncompliance with Workplace Posters
U.S. Department of Labor (DOL) recently increased the maximum fine amounts for noncompliance with certain federal notice and posting requirements, to include the following:
- Family and Medical Leave Act (FMLA): $189 (from $178)
- “Job Safety and Health: It’s the Law” (Occupational Safety and Health Act): $14,502 (from $13,653)
- Employee Polygraph Protection Act (EPPA): $23,011 (from $21,663)
The DOL’s website includes links to the applicable posters—which employers may download and print.
Employers may want to see if they are displaying (1) the correct and applicable poster(s), (2) in the proper location(s), (3) to all applicable employees and/or applicants.
The DOL’s guidance applies only to the federal notice and posting requirements of its own agencies. Many states and localities have additional notice and posting requirements that employers may be required to satisfy.
The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” Has Been Signed into Law
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“the Act”) will invalidate pre-dispute contract provisions requiring mandatory arbitration of any:
- “Sexual Assault Dispute” meaning “a dispute involving a nonconsensual sexual act or sexual contact”; or
- “Sexual Harassment Dispute” meaning “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”
With the passage of the new federal law, even if an individual has signed a contract agreeing to arbitrate future disputes related to sexual assault, sexual harassment, and related retaliation, the individual can still bring a lawsuit for such claims in Court. The individual cannot be compelled to resolve the matter exclusively through arbitration.
The Act also prohibits enforcement of a “predispute joint-action waiver” requiring mandatory arbitration of Sexual Harassment or Assault Disputes. Thus, employers cannot rely on arbitration agreements as a means of preventing individuals from participating in class actions or other joint proceedings if the claims involve sexual harassment, assault, or related retaliation.
The law is retroactive; any clauses in existing contracts requiring arbitration of Sexual Harassment or Sexual Assault Disputes are no longer enforceable.
Written Notice Required Before Using Tracking Devices in Employee Vehicles
In January of this year, Governor Phil Murphy signed into law Assembly Bill 3950. As a result, private employers in New Jersey must now provide employees with written notice before using tracking devices on vehicles operated by employees. The law takes effect on April 18, 2022.
The law defines “tracking device” as “an electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.” Devices “used for the purpose of documenting employee expense reimbursement” are excluded from the definition of “tracking device.” Notably, the law applies regardless of whether the employee uses a company-owned vehicle or the employee’s personal vehicle.
An employer that knowingly uses a tracking device on an employee-operated vehicle without providing written notice to the employee will be subject to a civil penalty in an amount not to exceed $1,000 for the first violation and not to exceed $2,500 for each subsequent violation.
New Bill Expands Parking Lot Liability for Employers
In January of this year, Governor Phil Murphy signed S771 into law, which amends Section 36 of the New Jersey Workers’ Compensation Act. S771 expands workers’ compensation liability in parking lots. Here are some details:
- If an employer provides or designates a parking area for use by an employee, employment shall be deemed to commence when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period.
- If the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.
As a result of this change, an employer will be liable if it “provides” a parking area and the injury occurs in that parking area. The term “provides” is somewhat ambiguous and will likely be largely up for debate.
In addition, if an employee parks at an offsite parking area provided by the employer and is injured while travelling directly from that area to the place of employment, that injury will be compensable.
New Laws in New York Combat Workplace Harassment and Discrimination
Governor Kathy Hochul signed two new laws on March 16, 2022 targeting harassment and discrimination in the workplace. Here’s a summary:
Confidential Hotline S.0812B/A.2035B
This bill establishes a toll-free confidential hotline to provide individuals with complaints of workplace sexual harassment counsel and assistance. The New York State Division of Human Rights will operate this hotline during regular business hours and disseminate information about it in order to ensure public awareness. The law further indicates that the Division will work with organizations representing attorneys, including but not limited to the New York State Bar Association, to recruit attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel to individuals who contact the hotline.
This law is effective July 14, 2022.
Release of Personnel Records Considered Retaliation S.5870/A.7101
This law prohibits the release of personnel records as a retaliatory action against employees who complain or assist in proceedings involving unlawful discriminatory practices by employers. The legislature justifies this law by stating “as demonstrated by recent events, this retaliation frequently appears in the form of a leaking of personnel files with the intent to disparage or discredit a victim or witness of discrimination in the workplace.”
Specifically, the law amends New York Executive Law 296 to state the following:
- “Retaliation may include, but is not limited to, disclosing an employee’s personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article, except where such disclosure is made in the course of commencing or responding to a complaint in any proceeding under this article or any other civil or criminal action or other judicial or administrative proceeding as permitted by applicable law.”
This law was effective immediately.
Increasing Number of Lawsuits Filed Over Accessibility for People with Disabilities
Title III of the Americans with Disabilities Act (ADA) prohibits businesses open to the public from discriminating against people with disabilities. The latest upswing in lawsuits proves that this protection is in place whether in an employer’s brick-and-mortar building or on their online sites.
Data from the law firm Seyfarth Shaw, which has been tracking this since 2013, shows that more than 11,400 people filed an ADA Title III lawsuit in 2021—a 4 percent increase from 2020 and a 320 percent increase since 2013. According to Kristina Launey, a litigator with Seyfarth Shaw, “There are thousands of lawsuits filed each year alleging websites and mobile applications are not coded so that they are accessible to individuals who are blind.”
On March 18, the Department of Justice released guidance on Web accessibility. The guidance says, in part, “the ways that websites are designed and set up can create unnecessary barriers that make it difficult or impossible for people with disabilities to use websites, just as physical barriers like steps can prevent some people with disabilities from entering a building. These barriers on the web keep people with disabilities from accessing information and programs that businesses and state and local governments make available to the public online. But these barriers can be prevented or removed so that websites are accessible to people with disabilities.”
The agency listed characteristics of websites inaccessible to people with disabilities, including:
- Poor color contrast
- Reliance on color to provide information
- Lack of text alternatives, or alt-text, on images
- No captions on videos
- Inaccessible online forms
- Mouse-only navigation rather than keyboard navigation
“The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities. Businesses open to the public must take steps to provide appropriate communication aids and services (often called “auxiliary aids and services”) where necessary to make sure they effectively communicate with individuals with disabilities.”
“A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website.”
“For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”