Minimizing Workplace Distraction

In every workplace,  distractions can impact productivity. Here are a few quick tips to help reduce distractions.

1. Consolidate email checking time: According to a Harvard Business Review study, the average worker checks their email 74 times a day. Having set times in the day to check emails instead of checking each new email as it arrives could be a huge time saver.

2. Budget your time: Set goals for which tasks you want to accomplish in each day and approximately how long they should take, then do your best to stick to those times.

3. Take breaks: It may seem counter intuitive, but taking a quick break to get a drink of water or take a loop around the office can help improve your focus and clarity.

Independent Contractors

Time and time again business fall into the trap of believing they have an independent contractor providing work or services for them when, really, they have an employee.  Getting that determination wrong can have far reaching consequences in many areas, whether it be lack of withholding taxes, a requirement to bear the burden of unemployment benefits, unknown exposure to discrimination charges and wrongful termination cases, or consequences in many other areas that arise from an employer/employee relationship.
For whatever reason, business owners often believe that all they need to ensure the relationship is one of an independent contractor is a signed agreement.  While that is a good, and sometimes necessary first step, it does not go far enough.  Most states examine how the relationship actually plays out and apply a number of factors to make a determination.
The most important factor in almost every state is “control.”  Who controls the work?  Does the putative employer require the putative employee to be certain places at certain times to perform certain tasks?  Does the putative employer or putative employee decide how and when the work is to be done?  If it appears that the putative employer controls most aspects of the relationship, it is much more likely that there is an employer/employee relationship.
Other relevant questions include: who provides the tools to ensure the work can be completed? Is the putative employee paid by the hour or by the project?  Does the putative employee have its own company that provides services or are the services integrated into the putative employer’s business?  Does the putative employee provide services for other companies?  Is the work performed on the putative employer’s site or elsewhere?  Can the putative employee quit without ramifications or is there some sort of contractual liability for termination of the relationship?
There are many other factors that weigh in to the analysis. But with the ramifications being so far-reaching, it is worth a business owner’s time and effort to make sure the relationship is set up right.

OSHA Penalties Increased in August

Last year, Congress passed legislation requiring that federal agencies increase their penalties based on inflation.  In response, penalties from the Occupational Safety and Health Administration (OSHA) have increased effective August 1, 2016.  The last time such an increase occurred was 1990.

Maximum penalties for Serious, Other-Than-Serious, Posting Requirements and Failure to Abate issues have increased from $7,000 to $12,471 per violation.  Maximum penalties for willful or repeated violations have increased from $70,000 per violation to $124,709.  OSHA will continue to adjust its penalties each year based on the Consumer Price Index.

Often times, OSHA will include multiple violations in its citations, thus it will likely not be uncommon for employers to experience $50,000 – $100,000 in fines resulting from costly mistakes made at the workplace.

With potential penalties nearly doubling, now is a great time to review your safety programs and ensure compliance with OSHA standards.

Legal Protections for Service Members and their Families

Those who serve in our military are some of the most honorable people in our society.  And you should be aware that federal law protects employees who take leaves of absence to serve our country and their family members.  Here are a few of the laws and what they mean to you and your service members:
The Uniformed Services Employment and Reemployment Rights Act of 1994 grants employees who leave their jobs for military service the right to reemployment upon their return.  In most cases, you must reemploy a service member who has been on a five-year term of duty or less.  Even this term can be extended in certain circumstances.
When the service member returns, they must be placed in the position they would have occupied had they not been called away to service.  This means that seniority and other benefits accrue to the service member while they are away.  Service members must receive all the training necessary for their jobs upon their return. If a service member cannot qualify for a position despite training, the employer must try to find him/her a new position.
Of course, the service member must provide you reasonable advance notice that he/she is leaving for military service in most cases. And they must request reemployment within a specific time frame which is tied directly to the length of service.
Military leave is usually unpaid by the employer, however, at the employee’s request, the employee may use accrued paid leave and vacation time.
The United States Department of Labor is tasked with enforcing USERRA’s provisions and has helpful information on its website.
Certain provisions of the Family and Medical Leave Act apply specifically to those who serve or have served in the military.
Generally, to qualify for protections under the FMLA, an employee must be employed by an employer for 12 months.  These months do not have to be consecutive, but an employer does not have to count employment before a break of seven years.  However, the employer must do so if the break was caused by military service.
Physical and psychological conditions which are incurred in military service are “serious health conditions” which are covered by the FMLA.
The FMLA also provides special protection to those who are related to service members.  Spouses, parents, and children of service members are granted “qualifying exigency” leave for preparations for and wrap up of a service member’s leave.  This means relatives of service members must be granted leave for child care issues, military ceremonies, and other related events.
In addition, the “next of kin” of an injured service member may take “military caregiver” leave to care for their loved one.  This type of leave is available for 26 weeks in a 12-month period – as opposed to other shorter types of FMLA leave.
Again, the Department of Labor is responsible for enforcing the FMLA and has information on its website.
All of us here at Trojan Labor would like to thank those who have served in our armed forces as well as their families.

HR Directors may be held personally liable under the Family and Medical Leave Act

Recently, a United States Appellate Court held that a human resources supervisor could be personally liable when an employee was improperly denied her protections under the Family Medical Leave Act (“FMLA”).  The plaintiff took leave on two separate occasions, first to care for her son who was suffering from diabetes, and a few weeks later to care for her second son who broke his leg.
During her second leave, the employer, and specifically the director of human resources at the employer, took issue with some of the paperwork which supported the plaintiff’s leave.  The employer refused to allow the plaintiff to return to work until she provided new documentation.  Communications broke down, and plaintiff left her job.  She sued her former employer and the director of human resources.  The trial court dismissed the case.
The United States Court of Appeals for the Second Circuit held that the trial court was wrong and that the case against the human resources director could continue. An individual may be held personally liable under the FMLA if she is an “employer” which the statute defines to include “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”
Relying on the interpretation of a similar definition found in the Fair Labor Standards Act, the Court reasoned that an individual may be held personally responsible for FMLA violations if that individual “possessed the power to control the worker[ ] in question, with an eye to the ‘economic reality’ presented by the facts of each case.”
The Court considered factors including whether the individual (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.
In the end, the Court of Appeals determined there were too many outstanding factual questions about the extent of control the human resources director exercised for the trial court to dismiss the case.  It sent the case back for further proceedings.  The take home message is that individuals and employers may be held liable if your company violates the FMLA or FLSA.  The best course of action is to keep your human resources department informed of their responsibilities and ensure they receive proper training on updates to federal employment laws.
The case is Graziadio v. Culinary Institute of America, Docket No. 15-888-cv in the United States Court of Appeals for the Second Circuit.

4 Times You May Need a Temporary Staffing Company

In business, staffing shortages inevitably occur. That is where a temporary staffing company like Trojan Labor comes in. We can provide temporary workers to help meet your company’s needs.

Here are four times you may need a temporary staffing company:

  1. Seasonal Jobs: Not every position is necessary year round. Using a temporary employee from a temporary staffing company allows you to fill seasonal positions without the expense of hiring someone for just a few weeks (or months) a year.
  2. Special Projects: When special projects arise (especially ones with tight deadlines) a temporary employee can ease the burden on permanent employees and help the project to be completed in a timely manner.
  3. Sickness: When a permanent employee calls in sick, a temporary employee can be sent in to take their place while they recover so that productivity does not suffer.
  4. High Turnover: It is expensive to continually hire and train new employees only to have them leave the job soon after. When a position has a high employee turnover rate, a temporary employee can be a cost effective solution.

Updates to OSHA’s Amputation Program

On August 13th, OSHA issued an update to their National Emphasis Program on Amputations.The NEP targets industries that have high amputation rates. OSHA uses the Bureau of Labor Statistics’ injury date in order to find the industries with the worst amputation rates.

According to the Assistant Secretary of Labor for Occupational Safety and Health, “Workers injured from unguarded machinery can suffer permanent disability or lose their lives. This directive will help ensure that employers identify and eliminate serious workplace hazards and provide safe workplaces for all workers.”

This update will apply to workplaces that have equipment and machinery that have the potential to cause amputations. To learn more you can view the directive’s PDF  here or visit OSHA’s website.

More Employees will be Eligible for Overtime with Proposed Minimum Salary Increase

The U.S Department of Labor has released a proposal that would set the minimum salary for overtime exempt employees at $50,440 a year, or $970 a week. Currently, the minimum salary is $23, 660 a year, or $455 a week.

This requires businesses to determine how many of their employees will need to be reclassified. For an employee that is non overtime exempt,  the employer must pay them at least time and a half for any extra hour they work over 40. This new rule could cause problems for small businesses who need the flexibility that exempt status allows.

The rule is not final and there is no timeline for when it will be final.  There will be a 60 day comment period after which the DOL will review the comments and make revisions to the proposal. After the revisions are made they will be published and a date will be set for when the rule becomes effective. They are not expected to be final until at least mid 2016.

However, the proposed changes should be something that employers are aware of so that they can begin to evaluate which employees will need to be reclassified, consider the extra costs of overtime involved, and review job duties and descriptions.


Marijuana Users in Colorado Can Face Disciplinary Action from Employers

When Colorado legalized recreational marijuana it became one of four states to allow it. Twenty states allow medical marijuana.

This has left national employers that have employees in Colorado (and in other states where marijuana is legalized) wondering what they can do if an employee tests positive for marijuana and the company has a zero drug tolerance policy.

The case of a worker in Denver, CO named Brandon Coats has finally given employers an answer. Brandon is a registered medical marijuana user who uses it to relieve pain caused by a car accident that left him paralyzed.

After testing positive for marijuana, he was fired from his job at Dish. Dish has a nationwide zero drug tolerance policy.

Coats filed a wrongful termination complaint saying that he was protected by a Colorado law that makes it illegal to fire someone for carrying out a legal activity during non working hours.

The Colorado Supreme Court ruled that the employer was able to fire Coats for his off-duty and off-premises marijuana use. The court ruled that because marijuana use was still federally illegal it did not qualify as a “legal activity” that would be protected under the Colorado law.

As a result, in Colorado, employers are now able to practice their drug-free workplace policies as long as it is a zero tolerance policy applied to all employees and the consequences are clearly laid out to employees to avoid possible discrimination charges.

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice.