Saturday February 24, 2018

Can an employee take FMLA leave for the death of a pet? Court weighs in

Almost everyone knows how difficult the loss of a beloved pet can be. But is it upsetting enough to qualify for FMLA leave? 

One employee, who was having a particularly hard time coping with the loss of his dog, thought so.


Joseph Buck worked as a machinist for Mercury Marine in Wisconsin. One day he called his supervisor, asking for a vacation day to deal with the death of his dog. At the time, Buck did not mention how severely affected he was by this — he had been unable to sleep since putting his dog down. Buck’s employer granted the vacation day.

The next day, Buck called out again, this time sharing that he was still unable to sleep. This counted as an unexcused absence.

That day, Buck went to the emergency room where he was diagnosed with situational insomnia. He received a note from the doctor detailing his condition, which he gave to his supervisor. Despite the note, that day’s absence, as well as several others that followed, were considered unexcused.

After three months, these absences led to Buck’s termination.

FMLA interference?

Buck filed a lawsuit against Mercury Marine, claiming FMLA interference. But summary judgment was granted in favor of the employer.

The court acknowledged that insomnia can be considered a “serious health condition” under the FMLA, but Buck failed to prove his did.

To be considered serious, the condition must:

  • require inpatient care (an overnight hospital stay) or continuing treatment by a health care provider, and
  • incapacitate the individual for more than three consecutive days.

The court pointed out that Buck’s only treatment was one visit to the ER. The note he received from the doctor also didn’t categorize the insomnia as chronic, nor did it say Buck was unable to perform essential job functions.

Even if Buck’s insomnia was considered a serious health condition under the FMLA, the court said he still didn’t give his employer adequate notice of his need for FMLA leave. Case dismissed.

While Buck didn’t qualify for FMLA leave, it’s possible that another employee who lost a pet could, as long as they meet the qualifications for a serious health condition.



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Workflex in the 21st Century Act: Paid leave on the federal level … with a catch

Following an array of state and local paid leave laws and loud calls from employers and prominent business groups, Congress has introduced a bill to make paid family leave on a federal level a reality. But the legislation probably isn’t what HR pros were expecting.

The Workflex in the 21st Century Act was introduced into Congress, with heavy developmental and promotional help from the Society for Human Resources Management (SHRM).

Of the bill, SHRM’s president and CEO Johnny C. Taylor, Jr. said:

“Workflex in the 21st Century – that says it all. The bill fits the changing nature of people’s work, their schedules and their needs.”

While the bill would provide paid leave on a federal level that is greater than the leave required by either their state or local mandates, it wouldn’t require employers to offer it. The paid leave would actually be provided via an opt-in program.

Why should employers opt-in?

It’s easy to see why employees would love such a law. But why would employers that don’t currently offer paid leave do so if it wasn’t a required of them. In other words, what would compel employers to opt-in to such a program?

The incentive: Employers wouldn’t have to comply with the complex patchwork of the state and local paid leave laws if they opted in to the federal program. Plus, it would give companies a model to follow in offering paid leave, which would make it easier to predict the use of the program.

Under the voluntary, opt-in program that was created in the Workflex Act, employers could offer an ERISA-qualified plan that includes a federal standard of paid time off as well as options for flex-work arrangements and doing so would pre-empt state and local paid sick leave laws.

If passed, the bill would also:

• Extend paid leave to all full-time and part-time employees.
• Guarantee all employees a flexible work – or workflex – option, such as a compressed work schedule, telecommuting or job-sharing.
• Require employers, not taxpayers or employees, to bear all costs.
• Maintain and complement protections afforded under the FMLA.





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Is love calling at work? Here’s 10 reasons not to pick up

Valentine’s Day may be all chocolate and roses, but when it comes to office romances, things aren’t always that sweet.

And while the number of employees dating co-workers is the lowest it’s been in ten years, CareerBuilder’s annual Valentine’s Day survey still found that 36% of employees have been in an office relationship.

Of that group, the survey found:

  • 22% of workers have dated their boss
  • 35% have dated co-workers two or more times in their careers
  • 24% were in a relationship with a married colleague
  • 41% had to keep their romance a secret, and
  • 6% of workers left their job when a relationship went south.

Though not every office romance ends badly (31% of dating co-workers ended up getting married), there are many potential complications when you get romantically involved at work.

What could go wrong?

There are some obvious reasons not to date co-workers, such as the awkwardness of having to work together after breaking up. But lawyer and Ohio Employer’s Law Blog founder Jon Hyman points out a lot of lesser known and potentially legal pitfalls you may not even think about:

  • conflicts of interest
  • extortion and blackmail attempts
  • conversations between employees and HR about personal, romantic details
  • having to explain relationship details in a courtroom
  • office gossip
  • love contracts
  • loss of respect from co-workers and management
  • facing termination for hiding a relationship
  • harassment and retaliation lawsuits if a boss’s romantic partner gets special treatment, and
  • harassment and retaliation lawsuits by an upset employee when a relationship ends badly.

What should employers do?

Permitting office relationships always opens the door to possible harassment or retaliation lawsuits, but since these romances aren’t illegal, employers have to decide which route they want to take in dealing with them.

A few options are:

  • banning office relationships completely
  • banning relationships between superiors and subordinates
  • allow relationships if both parties sign an agreement not to file a lawsuit against the company (aka a “love contract”), or
  • permit any and all types of office romances.

No matter what you decide, it’s a good idea to keep an eye on any love birds in the office.



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Job candidates scheduling interviews without involving HR? There’s an app for that

Instead of HR and recruiters wading through a sea of applications, imagine job candidates being able to schedule an in-person interview as soon as they apply.

To fill 80,000 positions, Home Depot is doing just that.

More candidates

The home improvement retailer introduced an app that allows job seekers to view openings, apply and set up an interview, all from the convenience of their phone, at any time. Home Depot also introduced a Text-to-Apply feature.

Since the new hiring tools, the number of Home Depot’s applicants has increased by 50%. And 80% of the candidates have used the self-scheduling interview feature.

Home Depot also has a mobile training app called PocketGuide, which allows new employees to learn about the company’s products while working on the shop floor.

The future of hiring?

An app allowing employees to schedule their own interviews makes sense for a huge retailer like Home Depot; it has a lot of positions to fill, and typically a high turnover rate. But an app like this could make a lot of sense for all different kinds of companies, big or small.

With unemployment at a record low, companies are having to fight for candidates in a way they haven’t before. Many HR pros are focusing on improving employee engagement and attracting new talent, and a system like this could be the way to go.

One of job seekers’ biggest frustrations with the application process is how impersonal it is. Very often, candidates submit applications and never hear back. By allowing them to set up an interview, applicants know they’ll get a chance to talk with someone. The convenience of applying through an app can also attract the candidates who are turned off by lengthy online applications.


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How video content management systems are transforming HR

The job of the HR professional is constantly expanding because of the complexities associated with organizing and prioritizing so many complex procedures, more employers are turning to video content management systems for help. If you’re unfamiliar with the ins and outs of this system, guest author Sean Gordon, the CEO of HireNami, an HR software provider, offers a detailed breakdown on why the right video content management system may be just what your company needs.


For a company looking to grow and develop, an unlimited amount of operations are taking place on any given workday. The problem we face working in human resources is a need to organize and prioritize procedures for employee acquisition and development, all within the realm of the everyday business proceedings of the company.

We need a simple yet intuitive system to manage everything from one location, expediting our efforts and relieving headaches from miscommunications and missed opportunities. We need a system that can manage content, alert employees and candidates about upcoming events, and we need it to support the modern proliferation of video.

To mitigate this issue, a number of companies have pivoted towards adopting an all-in-one video content management system. These platforms consolidate training, coaching, interview and marketing content all into one location that can be easily accessed the moment a team member needs it. It saves time, resources and creates a basis to fundamentally shift employee development.

Let’s look at a few reasons why video content management platforms are worth considering.

Save Time On Costly Hiring Processes

Video interviewing software has brought much-needed innovation to large scale hiring practices. This software reshapes the traditional interview process by using mobile or webcam-based video capabilities. Team members are given access to the software and can be made party to different candidate’s interviews. They can submit video questions, giving the candidate a notification and opportunity to submit a response. Team members can then review video responses at their own pace and share notes on a candidate.

This process using video interaction expedites the hiring process and saves a great deal of time. We all know the headache of trying to schedule a candidate’s interview around five different team member’s busy schedules. Instead of pushing interviews out to find the time, they can be conducted seamlessly online. Video clips give a stronger insight into the candidate, portraying body language and tone to more closely mimic an in-person interview. The company also benefits from being able to expand their scope of potential candidates by affordably interviewing prospects from anywhere in the world.

The average employer handles twenty-two candidates for every person hired, and hundreds of applications on top of that. The need to organize and expedite this process and make it more cost effective is critical and can reflect positively on the HR department.

A More Concise Way To Train

Video content is a transformative way to train new employees. When working with new hires, they’re often inundated with new information coming from every direction. Without a doubt things will get lost in the shuffle, especially if it’s delivered in large packets and forms.

Video content via a management system is different. First, video has been shown by multiple studies to significantly improve learning retention rates over text. The content is more enjoyable to digest and can be learned passively. The other benefit of video-based training material is that it can be hosted on a management system that allows 24/7 access. Employees that have a question about a topic can simply enter the management system with their username, search by term or concept, and return a list of instances where the term is covered in a video. Even better, the system can bring them to the exact timestamp within the video that the concept is discussed. This ability to go back over concepts increases efficiency and allows employees to operate with great autonomy, freeing up time for everyone.

Optimizing Existing Employee Efficiency

Providing consistent job coaching to your top employees is just as crucial as training new ones. Video integration software does a great job of creating unique opportunities for employees to grow.

Supervisors can note areas of improvement and assign videos and coaching projects within the platform. Face-to-face video communication lets employees receive feedback even when their supervisor or teammates are away from the office. Supervisors can use “drip” video features, releasing a small amount of content at a set pace to employees over time to maximize retention. Employees can access these libraries on their mobile devices and away from the office, so they have the benefit of constantly learning and growing in their career.

Human resources acts as the glue that keeps the company together. This isn’t always an easy task. For a HR department struggling to keep up with training, coaching and hiring endeavors, a video content management system may be the solution to tie everything together.

Sean Gordon is the chief executive officer of HireNami, an HR software provider, 
Sean’s experience recruiting, hiring, training and building teams inspired him to found HIRENAMI to take these challenges from painful, inefficient, and time-consuming to quick and effective.

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HR pros targeted in new scams: 3 schemes the FBI, IRS say to watch for

Heads up: In recent months, a number of federal agencies — including the FBI and IRS — are warning employers about new scams targeting employees’ direct deposit, W-2 and I-9 information. And these scams have wreaked havoc on scores of companies.

Here are three of the most problematic scams HR pros need to be aware of:

1. Direct deposit information

The most recent warning for employers came from the FBI. It involves a phishing scam in which cybercriminals attempt to get employees to unwittingly provide the scammer access to the company’s self-service payroll platform.

In the version of the scam HR pros will be most interested in, a person pretending to be from the company’s HR department send an email asking an employee to click on a link provided in the email and log into their self-service account.

The scammer will claim the employee must do this in order to:

  • view a confidential email from HR
  • view changes to the employee’s account, or
  • confirm that the account should not be deleted.

However, when the employee clicks on the link and enters the requested info, they’re actually providing info on their W-2 and paystub info. The scammer can then change the employee’s direct deposit instructions, and prevent detection by changing the email address used to notify the employee such changes were made.

Scammers may also change an employee’s passwords or other necessary credentials to keep the fraud from being discovered for as long as possible. In many cases, employers aren’t aware of anything until they hear from workers that their wages aren’t being deposited.

To prevent falling victim to this scam, XpertHR says the FBI is warning employers to:

  • Train employees to watch for phishing attacks and suspicious malware links. Checking the actual e-mail address rather than just looking at the display name can be crucial to spotting the attack early.
  • HR self-service platforms should have two-factor authentication. For example, users can be required to enter a second password that is e-mailed to them or a hard token code.
  • Set up alerts on self-service platforms for administrators so that unusual activity may be caught before money is lost. Alerts may be triggered for when banking information is changed to online bank accounts typically used by fraudsters.
  • Set a time delay between when direct deposit information is changed in the self-service portal and the actual deposit of funds into the new account to decrease the chance of the theft of funds.

2. Growing W-2 scam

The IRS also recently warned employers about a W-2 scam that impacted “hundreds of organizations and thousands of employees last year.”

Reports of a Form W-2 scam skyrocketed last year (900 reports in 2017 compared to a little over 100 in 2016), and cybercriminals have easily been able to trick scores of payroll pros – and other staffers with access to payroll info – into disclosing sensitive info about the entire workforce.

In general, the scam involves an email appearing to come from a company exec, asking payroll pros for a list of employees and their W-2s.

With its warnings, the IRS is hoping to prevent another record year for scammers. For more details or what to do if you’ve fallen victim to the scam, click here.

3. A convincing I-9 request

Finally, if you get a very convincing email from the U.S. Citizenship and Immigration Services (USCIS) agency about info on your employees’ I-9s, don’t follow the instructions.

The I-9 info request is yet another in a series of sophisticated scams targeting employers. And the scam appears to working.

Employers aren’t required to submit Forms I-9 to the USCIS, so such a request may raise some red flags for some folks. But the request is tripping up employers because the emails look very authentic. In fact, the emails actually come from a address. Plus, they even contain labels from both USCIS and the Office of Inspector General.

As if that’s not enough to fool some time-strapped HR pros, many of the emails also contain other details designed to make the messages appear legitimate — like your company’s mailing address.

The USCIS, however, has made it abundantly clear it’s not sending any emails to employers about their I-9s. It’s also warning firms not to click on any links in the email or respond to the sender.

Employers may also be tripped up because the feds recently announced they are ramping up I-9 audits, and firms want to respond as quickly as possible to any I-9-related requests. Again, the USCIS won’t email about an I-9 audit.

As Alliance 2020, a background screening and information services provider, reminds employers:

“Audits of I-9’s are conducted by the Immigration and Customs Enforcement or the Department of Labor and notification of an upcoming audit is always done by a written notice from the agency.  USCIS never requires employers to submit Forms I-9 to USCIS unless they are being audited….never requires an employer to email copies to them.  At this time, the Officials will choose where they will conduct a Form I-9 inspection. For example, officials may ask that an employer bring Form I-9’s to a U.S. Immigration and Customs Enforcement field office. Sometimes, employers may arrange for an inspection at the location where the forms are stored.”

To prevent your company from falling victim to this I-9 scam, there are several preemptive steps you should take ASAP:

  • First, make sure your employees are aware of the I-9 scam email and what the phony email will look like.
  • If workers do receive an I-9 info request, they should forward those messages to the Federal Trade Commission via the site.
  • Also, if you receive an email from the USCIS and aren’t sure it’s legit, you can always double-check by forwarding it to

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Cost of denying an employee extended leave? $4.5 million

Though several court rulings have sided with employers that denied extended leave as an ADA accommodation, the issue is far from settled. And a recent lawsuit shows that employers denying additional leave is still a risky proposition.

Previous rulings all dealt with employees asking for multi-month or indefinite leave as an accommodation under the ADA, which the courts agreed were both unreasonable.

In Hill v. Asian American Drug Abuse Program Inc., though, an employee requested a much smaller amount of additional leave, which may have contributed to her victory.

New additional leave lawsuit

Della Hill was a counselor for a drug abuse program in Los Angeles. After injuring her arm and getting diagnosed with depression, Hill took leave and had a scheduled return date. She exhausted that leave and still needed more time to recover. Under California state law, she requested an extension of her leave by 18 days.

Hill’s employer ignored the request and fired her after she didn’t return to work. It did not discuss with her any other accommodations or the possibility of returning to her job in the future. Hill filed a lawsuit, and the court ruled in her favor.

The payout was a whopping $4.5 million. The breakdown was:

  • $550,000 in past and future wage loss
  • $1.35 million in compensatory damages, and
  • $2.6 million in punitive damages.

The jury said the employer failed to engage in the interactive process, and simply firing Hill was evidence of “malice, oppression, or fraud.”

What this means

While this was an additional leave case under state law and not the ADA, the employer’s actions are a great example of what not to do when handling these kinds of requests.

The interactive process with the employee is always the first and most important step. Even if the amount of leave they’re requesting is unreasonable, it’s crucial to try to find another accommodation.

It’s worth noting that in this case, the leave extension the employee was requesting was only 18 days — much shorter than the several months of added leave in all the circuit court rulings.

In some cases, 18 days of additional leave may be reasonable, and a court could potentially rule against an employer for not granting it.

Hill v. Asian American Drug Abuse Program Inc., CA Super. Crt., No. BC 582 516, 1/16/2018.


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Nearly a third of companies will pass tax law savings to staffers: Here’s how

HR pros have seen plenty of news stories about giant corporations that are passing along the savings from the new tax law to their employees. But until now, it’s been tough to get a picture of just how many employers, percentage wise, are actually going to make such a move.

Overall, 79% of employers are anticipating tax savings from the new tax law, according to Mercer’s Impact of US Corporate Tax Reform on Employee Rewards poll.

Nearly a third (32%) of employers plan on redirecting at least some of those savings to their employee rewards programs. But 47% said they don’t plan on redirecting those savings back to employee programs.

Only 22% of employers said they didn’t anticipate any tax savings as a result of the new law, the study found.

(Note: Due to the set-up of the study, the percentages don’t add up to 100%.)

Beyond one-time bonuses

Specifically, of those who said they’d redirect the savings, employers said they’d:

  • invest in employee training and development programs (11.2% of employers)
  • increase minimum wage (10.7%)
  • increase retirement plan contributions (10.1%), and
  • provide a one-time bonus to non-execs (9%).

According to Mary Ann Sardone, a partner and the North America Workforce Rewards Practice Leader with Mercer, the findings suggest employers are thinking of strategic ways to use the tax savings for long-term goals.

Sardone says:

“Using redirected tax savings for employee training and development signals that many companies are looking for longer-term investment in their human capital. While tax reform is still new, many companies are considering a wide range of potential employee investments as they evaluate their approach. As with any strategic human capital investment, alignment with overall business and people strategy is critical to having a lasting impact.”

An array of examples

As HR Morning reported, a number of major corporations have pledged to pass along some of the savings they’ll reap from the new 21% corporate tax rate (down from 35%) in the form of raises, bonuses and new investments in human capital.

One major example is AT&T. The company announced it would give a $1,000 bonus to more than 200,000 U.S. workers and invest $1 billion in the U.S. economy because of the new tax law.

Here are a few additional examples, courtesy of The Daily Signal:

  • Aflac: $250 million boost in U.S. investments and increased 401(k) benefits, including a one-time contribution of $500 to every employee’s retirement savings account.
  • American Savings Bank: $1,000 bonus to 1,150 employees (nearly the entire workforce), and increase minimum wages from $12.21 an hour to $15.15.
  • Aquesta Financial Holdings: $1,000 bonus to all employees, and increase minimum wages to $15 per hour.
  • Associated Bank: $500 bonus to nearly all employees and increase minimum wage to $15 per hour, up from $10.
  • Bank of America: $1,000 bonus for about 145,000 U.S. employees.
  • Bank of Hawaii: $1,000 bonus for 2,074 employees, or 95% of its workforce, and increase minimum wages from $12 to $15.
  • BB&T Corp.: $1,200 bonus for almost three-fourths of associates, or 27,000 employees, and increase minimum wages from $12 to $15.
  • Boeing: $300 million boost in investments to employee gift-match programs, workforce development, and workplace improvements.

Industry insiders, such as Adam Michel, policy analyst for economic studies at The Heritage Foundation, see the moves corporations are making as proof tax reform is working. According to Michel:

“Raises, bonuses, and new investments spurred by tax reform show that the Republicans’ tax reform is working how they said it would. Businesses across America are putting their tax cuts to work for the American people. This first wave of stories is great news, but the real benefits are yet to come. Tax reform expands the economic pie so that more Americans will be better off.”


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The Human Resources Management Kit 2018

The Human Resources Management Kit 2018 brings together the latest information, coverage of important developments, and expert commentary to help with your Human Resources Management related decisions.

Learn more! 

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Feds’ new I-9 enforcement push: 4 ways to protect your company

Now is the perfect time for a review of your I-9 compliance efforts for a number of reasons.

For starters, the most recently revised form became mandatory in the fall.

Plus, the Dept. of Homeland Security’s Immigration & Customs Enforcement agency (also known as ICE) can investigate your company’s I-9 records on an at-will basis – and has already been increasing these investigations with higher fines.

And because I-9 administration is one of the most routine tasks HR, benefits and payroll pros handle, it’s easy for minor issues to fall through the cracks.

But even the most minor issues can prove costly in the event of a federal visit. That’s why regular self-audits are so important.

Key: Before conducting the self-audit, make sure your roster of employees is up to date.

As employers know, all employees hired on or after Nov. 6, 1986, must have a completed I-9 on file. If you discover an employee doesn’t have an I-9 for whatever reason, make every effort to resolve the issue ASAP.

Review documents, discard excess

During your audit, you’ll want to make sure all documentation is accounted for. Chances are, you may have been hanging on to some unnecessary paperwork.

Employers are only required to keep documentation for former employees for one year after separation or three years, whichever is later.

Keeping documents you don’t need only gets in the way of your documentation process and could slow down your procedures.

4 common problems

During the audit, you’ll want to watch for these common errors:

1. Missing signatures. This error is made by both employees and employers. Recently, a staffing firm didn’t have the correct person signing for its remote workers and wound up getting hit with a $227,000 fine.

Another example: An event planning company failed to notice that Section 2 of the I-9s lacked all workers’ signatures. It wound up with more than 800 violations and a $605,250 fine.

2. Blank fields. Several fields in the I-9 are optional for employees (e-mail, telephone, etc.), but they can’t be left blank. These optional fields must include “N/A” in them. Employers can’t correct even the most obvious omissions, so if you notice a blank field, it’s critical to return the form to the employee to add “N/A.”

Note: Employees’ Social Security numbers aren’t required unless the employer uses E-verify.

3. Failing to help employees with Section 1. While not technically a mistake, not using a trained I-9 staffer to supervise staff filling out Section 1 often leads to mistakes and errors.

4. Failing to fix errors correctly. When mistakes are discovered on Section 2 and 3 of the form, the corrections must be initialed and dated by employers (Section 1 must be completed by the employee only).

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