The Challenge of Writing up Employees—and How to Do a Better Job at It
Our clients recognize how important it is to write up employees when situations call for it. Yet, most companies struggle terribly with getting supervisors actually to fill out a disciplinary form when a problem arises with an employee. Why is that? And what can employers do to fix it? The most common explanation we hear is that filling out a disciplinary form just takes too much time. Supervisors, like everyone else, believe that they already have too little time to perform their main duties. Just the thought of having to sit down to fill out HR paperwork often seems like an impossible additional task. That perception, however, does not have just one flawed assumption. It has two. The first mistake is the view that filling out “HR paperwork” is not one of a supervisor’s “main duties.” Employees manage tasks; supervisors manage people. One of the most important tools in managing people is the responsibility to inform the stakeholders (both the employee and management) whether an employee’s actions are acceptable or problematic. Therefore, writing up an employee is not tangential to a supervisor’s primary duties. It is a primary duty. The second mistake is the (often) false notion that the main barrier to performing write-ups is the time it takes to do them. The real reason in most cases is very different. Supervisors often are anxious about doing write-ups because they don’t really know how to do them. Sometimes, the reason for the difficulty is that the disciplinary form itself is a bad one. It may be unclear. It may be confusing. The company’s form often makes it difficult for the supervisor to know exactly what information to provide or how much detail to include. Uncertainty creates anxiety, and anxiety causes procrastination. It’s not a supervisor’s fault. Blame human nature (and the company’s disciplinary form). In addition to poorly drafted disciplinary forms, there is another common—and crucial—reason why supervisors often are unsure how to perform a write-up. It is because they often don’t know the purpose of the write-up. Sure, it potentially will be used for disciplining an employee. But that does not answer the question. Even worse, companies often don’t know the answer to the question. What is this write-up supposed to accomplish? The Goals of an Employee Write-up The answer begins with a crucial insight. All employee issues do not fall into a single category of impropriety. They fall into one of two different categories. Employee issues consist of either poor performance or misconduct. An employee who is not performing up to a company’s expectations is “guilty” of poor performance, not misconduct. An employee who has violated a company’s policies (such as insubordination) is “guilty” of misconduct, not poor performance. The primary reason to write up a poorly performing employee is to attempt to rehabilitate the employee—to see if the employee can perform up to expectations. The primary purpose for disciplining an employee who engaged in misconduct is to prevent future misconduct (of course, there are other purposes for write-ups, including the legal protection of the company). With the clarity of this distinction, performing a write-up almost becomes common sense. Incidents of poor performance require information about the company’s expectations, how the employee has failed to meet those expectations, what the plan is for the employee to meet those expectations in the future, and what will happen if the employee does not meet them. Incidents of misconduct require documentation of the company rule that was violated, extensive details about the alleged incident of misconduct (including, when necessary, an investigation of the incident), and the consequences of further misconduct. At Luchansky Law, we make sure that our clients have the HR tools they need, including well-drafted forms to utilize for hiring, discipline, termination of employment, and non-compete agreements. We also train our clients’ supervisors to understand their duties clearly and how to maximize their performance. The result is better operations and less anxiety—for the supervisors and the company’s owners. If you would like to discuss whether your HR tools may need a tune-up, or whether your supervisors would benefit from some training, give us a call at (410) 522-1020 to schedule a consultation.
Maryland Law Makes It Easier for Employees to Win Sexual Harassment Lawsuits
All employers know that maintaining a workplace that is free from sexual harassment is the right thing to do. A harassment-free workplace shows respect for all employees at work and creates a safe work environment. It also happens to be good for business. Complaints of sexual harassment are unsettling, distracting, time-consuming, and expensive. But from an employer’s perspective, the law traditionally has established a reasonably high threshold for a complaining employee to win a lawsuit based on sexual harassment. According to the broadly adopted standard for claiming sexual harassment, an employee complaining of harassment must be able to prove that the wrongdoer’s conduct was “severe and pervasive.” In other words, the bad conduct had to be pretty serious in nature (“severe”) and it had to occur more than once (“pervasive”). Historically, that has been a high standard to meet. In Maryland, however, that is about to change. During the 2022 Legislative Session that concluded on April 11, 2022, the Maryland General Assembly passed a new law that removed the requirement that sexual harassment be “severe and pervasive” before the conduct violates the law. The law no longer requires that the bad conduct be “really” bad, or that it happen repeatedly. Instead, based on the totality of the circumstances, a judge or jury simply must determine that the conduct unreasonably created a working environment that a reasonable person would perceive to be abusive or hostile. Based on this new standard, could a single suggestive remark be considered sexual harassment? Maybe. This new law has not yet gone into effect – but it will soon, on October 1, 2022. What Should Employers Do? There is not much time left before this new law goes into effect. During this time, there are two things that all prudent employers must do. First, it is time to review the company’s Employee Handbook. For those employers who have been meaning to have their employee manual reviewed for a couple of years but have not quite gotten around to it, now is the time to get it done. This new law is one of several employment-related changes that must be incorporated into the company’s handbook. But even for those companies who have their handbooks reviewed annually, it is time to review the company’s sexual harassment policy. Second, we believe that it is more crucial than ever to schedule supervisor training on sexual harassment. At the very least, the change in the legal standard must be conveyed to each company’s front-line supervisors so they know what standard they will be held to. Moreover, in the event of a charge of harassment, it is important for the company to be able to show that it took all the reasonable steps it could to prevent such an occurrence. At Luchansky Law, we recognize that the employment laws that affect our clients’ businesses change all the time. We consider it our mission to keep employers well-informed of the employment laws that affect their business, and to perform the tasks that are necessary to protect them. Whether an employer requires a review of its handbook, needs to provide additional training to its supervisors, or requires a defense of a complaint before the EEOC, or federal or state court, we are as committed to your protection and growth as you are. For answers to all your employment law questions and assistance with issues in the workplace, call us at Luchansky Law at (410) 522-1020.
Employer Vaccination Mandates have Title VII and ADA Implications
As they resume pre-pandemic operations, employers are understandably concerned about the safety of their employees and clients. As a result, many are implementing mandatory COVID-19 vaccination policies for their employees. According to the most recent guidance from the EEOC, employers are allowed to make such mandates; however, there are exceptions. The first exception is for those who cannot take the vaccine because of a sincerely held religious belief. The second is for those with a medical condition that prevents them from taking the vaccine. In its guidance, the EEOC has cautioned employers to be aware of these exceptions or face the risk of legal liability. With respect to the first exception, the EEOC guidance iterates that Title VII prohibits discrimination against those who refuse to be vaccinated because of their sincerely held religious beliefs. For the second exception, the ADA prohibits discrimination against employees who are unable to be vaccinated because of a disability. The new EEOC guidance reminds employers that pregnancy qualifies under the definition of disability under the ADA. Employers who have employees who object to a vaccine mandate for one of these reasons should engage in a two-step analysis. First, the employer should consider whether the unvaccinated employee poses a direct threat to the workplace. Second, the employer should discuss with the employee whether there are reasonable accommodations available to mitigate or eliminate that threat. Some factors to consider when assessing whether the employee is a direct threat are the duration of the pandemic, the nature and severity of potential harm, the potential harm’s likelihood of occurring, and the imminence of the potential harm. The latest guidance from state and local health organizations and the employee’s health care providers can be helpful in this analysis. If the unvaccinated employee is determined to be a direct threat, the employer should discuss with the employee possible accommodations. Examples include remote work, a change in the employee’s workstation to one that is further from other employees, modified scheduling, or continued mask-wearing and social distancing for this employee. As with any reasonable accommodation, the employer is not required to implement a modification of the employee’s work that would pose an undue hardship on the employer. The EEOC guidance recommends that employers who are considering implementing a mandatory vaccination policy notify their employees that they will consider reasonable accommodation requests for either religious or disability reasons on an individualized basis. Vaccination mandates require an artful balance between an employer’s right to ensure the safety of its employees and patrons and the employees’ rights under federal and state anti-discrimination laws. At Luchansky Law, we routinely assist employers with striking this balance. If your business would like assistance in reviewing or implementing its vaccination mandate for compliance with applicable anti-discrimination laws, give us a call at (410) 522-1020.
How to Improve Your Workplace
Complying with harassment legislation is a job you should assign your employment law attorney to ensure that you’re insulated against claims. Find out how compliance works here.
Do You Need to Review Your Business’s Employee Policies?
If your policies haven’t been changes in a while, a review and some revisions by an employment law attorney are essential.
TREASURY, IRS AND LABOR EXPLANATION OF TAX CREDITS FOR NEW PAID LEAVE
As you know, the Families First Coronavirus Response Act that was signed by President Trump on March 18, 2020 requires businesses with up to 500 employees to provide additional paid leave to their employees. Many businesses understandably were concerned whether they could withstand the potential financial impact of the legislation, as well-intentioned as it may be. In theory, the law included a mechanism for financial relief by providing employers with a dollar-for-dollar tax credit to offset the money paid to employees in accordance with these requirements. But many questions loomed – including how quickly employers would be able to utilize these tax credits. The Treasury, IRS, and Labor Departments now have issued a helpful explanation of the process for claiming these tax credits, with more guidance to be released imminently. Businesses will be pleased to know that they will be permitted to take these tax credits on a current basis by offsetting them against the regular payroll taxes that employers pay in each payroll. The notice explains: “When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes. The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS. “Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS. The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees. “If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.” You can review the IRS’s full explanation of these provisions – including a potential Small Business Exemption for businesses with fewer than 50 employees — at the following link: https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus. As always, if you have any questions, do not hesitate to contact Luchansky Law by email, or by calling 410.522.1020.
The Families First Coronavirus Response Act
President Trump signed into law the Families First Coronavirus Response Act, an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak. The new law, which goes into effect on April 2, 2020, impacts all businesses with fewer than 500 employees by requiring employers to provide employees additional paid sick leave for illnesses relating to the coronavirus, and by amending the Family and Medical Leave Act to require a blend of unpaid and paid leave for employees who must care for children whose schools and day care providers have closed. Here is a brief summary of the new law’s provisions. Temporary FMLA Expansion The new law does not make a wholesale change to the FMLA. Employers with fewer than 50 employees still do not have to comply with the standard provisions of the FMLA. But all employers with fewer than 500 employees have to comply with the new provisions of the FMLA summarized below. The new law now require employers to provide employees with up to 12 weeks of leave where the “employee is unable to work (or telework) due to a need for leave to care for [a] son or daughter under 18 years of age . . . if the school or place of care has been closed” because of the COVID-19 emergency. While the first 2 weeks of that leave can be unpaid, the remaining 10 weeks of the leave must be paid at 2/3 of the employee’s regular wages, up to a cap of $200 per day with a $10,000 maximum. There are some provisions in the Act that are designed to protect small businesses. For example – If an employee goes out on leave under this provision, and the employer cannot afford to hire him or her back because of economic conditions or other changes in economic conditions, the business only has to make reasonable efforts to restore the employee to the former position, but does not have an absolute obligation to do so. The Department of Labor will have the authority to exempt small businesses with fewer than 50 employees from these additional requirements when compliance with them would jeopardize the viability of the business as a going concern. Tax credits will be permitted in the amount of paid leave provided. These expanded provisions will terminate on December 31, 2020. Emergency Paid Sick Leave In addition to the expansion of the FMLA for childcare coverage described above, the new law also requires employers with up to 500 employees to provide additional paid sick leave to an employee who: Is subject to mandatory quarantine for COVID-19. Has been advised by a health care provider to self-quarantine because of COVID-19. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. Is caring for an individual who is subject to mandatory quarantine or has been advised to self-quarantine. Is caring for a son or daughter because their school has closed or child-care provider is unavailable because of COVID-19. Is experiencing any other substantially similar condition specified by the government in connection with the emergency. Employers are required to provide full-time employees with 80 hours of paid sick time, and part-time employees with a number of hours of sick time equal to the number of hours that such employee works, on average, over a 2-week period. This sick leave may not carry over from year to year. The Act prohibits employers from discharging, disciplining, or otherwise discriminating against an employee for taking leave under the new law. Tax credits will be permitted in the amount of paid leave provided subject to a cap of $511 per day per employee unless the leave is used for caring for a family member or child in which case a daily cap of $200 per employee applies. Employers will be required to post a notice of these rules, which the DOL will be issuing in the coming weeks. Details and Questions There are many details of the new law, of course, that require further explanation. Please contact us with any questions you have, either about the law in general, or about how it will affect your business. These issues continue to develop, and we will continue to keep you apprised of them.
Maryland Noncompete and Conflict of Interest Clause Act
As of October 1, 2019, Maryland joined other states across the nation by enacting the Noncompete and Conflict of Interest Clause Act (NCICA) to prohibit non-compete clauses and conflict of interest clauses for employees who earn equal to or less than $15.00/hour or $31,200 annually. The State of Maryland has deemed non-compete and conflict of interest clauses for lower paid employees to be against public policy and considers them null and void. Significantly, the NCICA prevents enforcement of non-competition clauses even while such employees are still employed. The law does not, however, place any limitations on agreements which restrict the use or possession of proprietary client-related materials and information. The NCICA does not provide any penalty for an employer who compels an employee to enter into a prohibited agreement, nor does it allow employees to sue employers who require them to sign the prohibited agreements. Rather employees will likely rely on the NCICA as a defense to a claim by their employer that they have violated a non-compete provision. If you are a Maryland employer and need assistance with Maryland employment law changes such as NCICA, please contact Luchansky LAW for a consultation.
Navigating the DOL New Overtime Rule
On January 1, 2020, a new U.S. Department of Labor final rule will extend overtime pay thresholds. The rule raises the standard salary level from $455 to $684 a week, the equivalent to $35,548 per year for full time workers. Employees earning less than the new imposed threshold are eligible for overtime pay of at least time and a half. The final rule further raises the annual compensation requirement for highly compensated employees to $107,432 per year. The final rule further allows the use of annual nondiscretionary bonuses, incentive payments and commissions to fulfill up to 10% of the standard salary level. The rule will change the earnings thresholds needed to provide exemption to FSLA’s minimum wage and overtime pay requirements for executive, administrative and professional employees. Employees Who May Qualify for Overtime Under the New Rule Employees receiving a W-2 tax form. Hourly wage employees. Repetitive, manual labor employees. Employees earning less than $35,000 annually Maryland employers will be affected by DOL’s new rule and should devise a strategy to prepare. Some employers may opt to reclassify their employees to avoid the rise in payroll costs. These employers should provide clear communication with their employees and pay close attention to record keeping including tracking of time, overtime and bonuses. If your company is facing an impact from the Fair Labor Standards Act’s newest rule, contact Luchansky Law to schedule an initial consultation.
Impact of Tax Liens on Security Clearance
TIPS TO PREVENT TAX LIENS FROM IMPACTING YOUR SECURITY CLEARANCE Every year, hundreds of thousands of applicants submit for security clearance approval or renewal. Simply completing the Form SF86 – all 127-pages – is a daunting task itself. Applicants do not need any additional hurdles interfering with receiving their successful approval. Yet, the existence of an outstanding tax debt is a frequent basis for security clearance denial. If an applicant has a tax lien, follow these steps to increase your likelihood of a favorable outcome. Resolve Your Delinquent Taxes Prior to Submitting Your Application Many applicants believe that they can submit their security clearance application and then resolve their tax delinquency afterward. They mistakenly assume that they need only resolve the tax lien prior to a decision being issued on the application. Wrong! Once the application is submitted, the research into the applicant’s background can commence promptly and any outstanding tax debts may quickly result in a negative assessment. While this requires advance planning, applicants must do everything in their power to resolve all outstanding tax debt prior to submitting the application. Doing so will give a person a much better chance of having the application approved. After a security clearance application is denied, you are typically issued a “statement of reasons” advising as to the basis for the decision. From there, the applicant typically has appeal rights. However, once you are this far along, you are way behind the curve. You want to start out this process as a “Winner”; not forced into filing an appeal with the hope of mounting a come-from-behind rally. To put yourself in the best place position, resolve your delinquent tax issues prior to submitting your application or renewal. Mitigation, Mitigation, Mitigation! The reality is, most applicants simply are not in a position to quickly resolve their tax lien prior to the due date for their application or renewal. Fortunately, the laws that govern security clearance issuances allow tax liens and other debts to be viewed less critically when the applicant has initiated good-faith efforts to repay the debt or when there are clear indications that the problem is being resolved or is under control. So, take action immediately to show your efforts to resolve your tax lien. Equally important – document your actions! Be sure to keep records of all the steps you have taken so that, if the time comes, you can demonstrate your efforts to mitigate and responsibly resolve the debt. Tax Liens Are Treated Just As Any Other Debt. Many applicants make the mistaken assumption that a tax lien will be viewed more favorably than other debts, such as a repossessed car or outstanding credit card debt. No so. The government views tax debt in a very similar manner to how it views many other forms of debt. Ultimately, the guidelines under which applications and renewals are decided look for debts that demonstrate the failure to live within one’s means. From the Government’s perspective, failure to live within your means reflect poor self-control, lack of judgment, or unwillingness to abide by rules and regulations. Not attributes associated with a person handling Classified Information. Accordingly, a tax debt, like most other forms of debt, will have a similar negative impact upon a clearance determination. BONUS – Don’t Go At Alone! If you have already been denied and are now at the appeal stage, you have the option to proceed pro se, which means to represent yourself. This is often a very bad idea. Application appeals are viewed through the prism of a specialized legal analysis, and it is critical that you have an attorney on your side who understands the legal issues being advanced. When an application or renewal has been denied, your career is often in jeopardy. Approach this issue with the seriousness it deserves and consult with an attorney who has experience in security clearance issues to help you through the process.
