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IN THE NEWS – EEOC HOLDS MULTIPLE COMPANIES LIABLE ON JOINT EMPLOYER THEORY

The EEOC announced last week a $1.65 million settlement in a case involving a primary contractor and four subcontractors, holding each company liable under a “joint employer” theory for racial harassment that occurred at a construction site. The key question was not which company actually employed the harassers; instead, the EEOC looked at whether supervisors in each company were aware of the harassment and failed to take appropriate action to stop it.

EEOC District Director Marie Tomasso commented: “Employers risk intervention by the EEOC when supervisors ignore racially offensive working conditions and fail to take prompt and effective remedial action to stop it.” Blatantly offensive conduct at this construction site included derogatory racial comments directed toward black employees, use of the “n-word,” repeated references to the Ku Klux Klan, and, in one instance, a noose suspended from a beam.

Although this case is an extreme example of workplace harassment, the lesson to all employers is to take immediate corrective action when an employee first complaints about a racially hostile work environment, regardless of whether your company has primary responsibility for the worksite. Harassment – whether it emanates from your own employees, a vendor, a contractor or a customer of your company, and regardless of whether it occurs in an office setting or out in the field – must be dealt with swiftly and effectively.

For additional information on this case, see: http://www.eeoc.gov/press/5-5-08.html.

TIP OF THE DAY – PROBATIONARY PERIOD FOR NEW HIRES

Many employers question the need for a probationary period for new hires, since Florida is an “employment at will” state.

One good reason to establish a 90-day probationary period is to protect the company from rate increases caused by unnecessary unemployment claims. “Employment at will” means that you can discharge an employee at any time with or without good cause, as long as you don’t run afoul of federal or state discrimination laws and whistleblower protections. However, employees who are terminated for legitimate business reasons where no employee misconduct is involved do qualify for unemployment compensation benefits. The exception to this is termination of employment during an established, initial 90-day probationary period that the employee was advised of at the time of hire.

Have new employees sign an acknowledgement that they are subject to a 90-day probationary period and will not become regular employees until the period is completed. This protects your company from rate increases resulting from unemployment compensation benefits paid to newly-hired employees who simply were not a good fit, or were let go for unsatisfactory performance in the first 90 days.

TIP OF THE DAY – PROBATIONARY PERIOD FOR NEW HIRES

Many employers question the need for a probationary period for new hires, since Florida is an “employment at will” state.

One good reason to establish a 90-day probationary period is to protect the company from rate increases caused by unnecessary unemployment claims. “Employment at will” means that you can discharge an employee at any time with or without good cause, as long as you don’t run afoul of federal or state discrimination laws and whistleblower protections. However, employees who are terminated for legitimate business reasons where no employee misconduct is involved do qualify for unemployment compensation benefits. The exception to this is termination of employment during an established, initial 90-day probationary period that the employee was advised of at the time of hire.

Have new employees sign an acknowledgement that they are subject to a 90-day probationary period and will not become regular employees until the period is completed. This protects your company from rate increases resulting from unemployment compensation benefits paid to newly-hired employees who simply were not a good fit, or were let go for unsatisfactory performance in the first 90 days.

EMPLOYER ALERT – FMLA COVERAGE EXPANDED

The Family and Medical Leave Act provides for 12-weeks of unpaid leave for individuals working for companies with 50 or more employees. New legislation has expanded the total amount of leave to 26 weeks for any employee who is the spouse, son, daughter, parent or “next of kin” of a member of the armed forces who needs care resulting from a serious injury or illness incurred while on active duty.

The expanded leave may only be used during a single 12-month period, and the 26 weeks is cumulative to standard FMLA. Accordingly, an employee who uses 12 weeks of FMLA leave for their own medical condition, would have a balance of 14 weeks of expanded leave to use for a relative in the armed forces during that same 12-month period. The addition of the term “next of kin” applies only to this expanded leave, and is defined by the FMLA as “closest blood relative.”

In related news . . .

The Department of Labor (“DOL”) recently proposed a number of changes to the FMLA regulations. Key changes that would benefit employers include the following:

Medical Certifications: The new regulations would allow employers, under limited circumstances, to directly contact the employer’s health care provider for clarification or authentication of FMLA medical certification forms. Employers would still have to comply with the privacy requirements of HIPAA, but would no longer be frustrated by medical certifications which, in the DOL’s words, are “vague, ambiguous or non-responsive.”

Continuing Treatment: Employees with a serious health condition requiring continuing treatment but no prescribed medication would have to receive follow-up care from their health care provider within 30 days of the initial visit to qualify under FMLA.

Notice Requirements Tightened: The open-ended notice requirement for employees who become aware of the need for FMLA leave less than 30 days from the anticipated commencement of the leave would be shortened to the same day or next business day.

Fitness-for-Duty: The current FMLA regulations severely limit the circumstances under which an employer can require a “fitness-for-duty” certification from a returning employee’s health care provider. The new regulations would increase employer rights in demanding fitness-for-duty certificates, and also expand the type of information an employer can require.

These proposed regulations are currently under review while the DOL considers comments that have been received from the public and various advocacy groups.