During a recent meeting with a client, we were asked if we were aware of the EEO’s opinion letter on high school diploma job requirements and discrimination under the Americans with Disability Act. We found the conversation to be very relevant given the fact that many employers have a standard hiring practice that generally requires a high school diploma.

Recently the EEOC issued an informal opinion letter stating that a high school diploma job requirement could be considered discrimination under the Americans with Disability Act. In their informal opinion letter, the EEOC stated the qualification standard that screens out individuals on the basis of a disability must be job-related and consistent with business necessity, or it may violate the ADA. Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

This means that for each position, the employer must take multiple steps to ensure they are not discriminating under the ADA. First, the employer must determine if the qualification standard of a high school diploma is job-related and consistent with business necessity. If the employer determines a high school diploma is job related, the employer must then determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation.

Employers should keep in mind, that, if they are going to use this kind of qualification standard, they need to have a specific job related reason based in the qualifications for the position itself. Employers need to look at individuals on a case-by-case basis to determine if there is some type of reasonable accommodation that might allow the person to successfully perform the job.

Midwest Staffing is always glad to be a resource to our clients regarding the latest employment related legislation. If you have any questions regarding this issue or any others, please feel free to contact your local branch office.

Have you been considering giving your employees a gift card or other small gift item during this Holiday season? If so, you may need to consider the tax issues associated with these fringe benefits. Currently, the Internal Revenue Service (IRS) advises employers that all fringe benefits, like gift cards are considered taxable wages unless they are excluded by a section of the Internal Revenue Code (IRC).

You may be wondering if there are any non-taxable gifts that you can safely give during this Holiday season. According to the IRS, employers can provide items that are considered de minimis. Examples of these gifts include tickets to a sporting event/concert/theater event, a Holiday group meal, flowers and other low priced traditional gifts that don’t have a cash value.

For example, the employer can provide a small gift on during the Holidays such as a mug with hot chocolate without any taxable issues to the employee. However, if the employer gives the employee a gift certificate to a coffee shop to purchase the items, it could create a situation where the employee could receive cash back. In this situation, the gift card/certificate would not be considered a non-taxable gift.

If you have any questions regarding the IRS Code, please contact your branch office or legal counsel. As an additional resource, you can reference the following guides published by the IRS: Taxable Fringe Benefit Guide and the Employer's Tax Guide to Fringe Benefits, Publication 15-B.

Many small businesses choose to outsource their IT (Information Technology) needs. Businesses without technical support are contemplating on whether to purchase laptops or desktops, this blog will explain two major reasons why the majority of our Minnesota offices are migrating towards laptops.

The number one factor to consider when deciding between a laptop and a desktop is the cost. Visit your local computer retailer or supplier you will notice a substantial price difference between a desktop and a laptop. The accumulated cost for purchasing a low-end and fully functional desktop computer at Best Buy would be $392.97 (excluding taxes): the computer $269.99, monitor $89.99 and network cable for $32.99. Compare now to a low-end, fully functional laptop which totals $274.99 (excluding taxes). Keep in mind that a desktops capability surpasses that of a laptop; a desktop has a faster and a larger screen. However a common workforce user primarily utilizes a computer for internet, remote access and word processing which are minimal processes that operate on both computers efficiently.

The second factor is mobility which is also an important feature. Employees that take work home continue to increase. Using a laptop allows instant access to their archived emails, documents and software for example; they wouldn’t have to save their information to a zip drive and bring it home where they might not have compatible software to open their documents. Also when employees are on vacation, sick or separate from the company; they are able to support one another from one location to another.

From our experience we learned that we could have saved money and time if the migration from desktops to laptops was completed for our Brooklyn Park office on June 1st. The added cost of network wiring which could have been avoided by acquiring a wireless network through laptops. Also consider the additional cost in employee’s time and resources which it took to transfer these desktop behemoths. Furthermore this excludes the difference in disposal cost once it becomes outdated.

Could you or your business be more efficient with time and resources with a laptop?

As State Primaries have taken place and the general elections are right around the corner, now is a great time to make sure your companies Voting Policies are up-to-date. Minnesota's Election Day Law covers all "regularly scheduled" state primary or general election was recently amended to give employees the "right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work."

Expansion of the "Right to Be Absent from Work"

In 2010, the MN legislature expanded the definition. Every employee who is eligible to vote has the right to be absent without penalty or loss of salary or wages. Employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election.”

Answers to Unanswered Questions

The Minnesota Election Day Law provides little guidance to employers beyond prohibiting "penalties" or "wage and salary deductions," Some questions you might have regarding the new law are listed below with some general guidance. Please consult your legal counsel before making any policy changes as this information is only guidance.

Can I require an employee to provide advanced notice?

The statute doesn’t fully address this issue, it would be challenging for an employee to prove that providing notice prior to the shift starting interferes with the right to be absent from work to vote.

Can I limit the amount of time the employee is absent from work?

Yes, although enforcing it might be a challenge. The statute provides that the employee must be given time off for the time necessary to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work. It does not provide for time to make a pit stop along the way! However, it would be difficult to prove how long it actually took the employee to vote based on lines at the polling place, etc..

Can I require the employee to use accrued vacation or paid time off (PTO) to make up the difference?

The statute doesn’t address this question but keep in mind that deducting an employee's accrued leave or PTO could be viewed as a prohibited deduction or penalty.

As a mother of a three year old, I rarely get out to the theaters to see an adult movie. In fact, if one were to review my ticket stubs they would find The Princess and the Frog and How to Train a Dragon (in 3D of course)! On occasion, my husband and I get a movie date night at home. Given that part of my job at Midwest Staffing Group Inc. is consulting with clients about avoiding legal risks in terminating employees, Up in the Air was a natural choice for a rare movie night.

In case you haven't seen it, the movie's about Ryan Bingham, a character played by George Clooney. Bingham is a professional outside terminator who travels around the US letting employees go. He spends the majority of his time in airports and remote US cities while earning frequent traveler perks. All of this changes when Natalie a recent college grad, played by played by Anna Kendrick joins the company. She has an idea to decrease extensive travel costs by doing terminations by video. She's assigned to go on an in-person tour with Bingham to see how terminating is done live, to improve her video product.

Throughout the movie, we see numerous firing scenes where some employees cry, others are angry and others are shocked. In my experience in HR, this is quite true to life. Overall, the movies about more than the painful duty of ending someone's job, it focuses on the “human aspect” of the termination. For nearly all companies, termination is still very much a part of their business. Up in the Air highlights not only the legal but the human risks associated with terminating employees. The movie reminds us of some key aspects to keep in mind when terminating an employee:

1. Pre-termination Planning- ensure you are aware of the risks before hiring and throughout the course of employment.
2. Begin before Hiring- Employment applications should provide an opportunity for applicants to fully disclose their past work history and reserve the right to terminate an employee for falsifying information. Secondly, the standards for working at your company should be made clear during the interviewing process and upon hire to avoid any surprises. Lastly, your employee handbook should have language that clearly states your companies at will employment policy. If the position requires a written employment contract, ensure that it is appropriate for the position.
3. Decision to terminate- If a manager decides that an employee should be terminated, this decision should be reviewed by at least one person before the final decision is made. The review should look at all of the facts leading up to the decision along with a review of the employees file.
4. Letting the employee know- Telling an employee they are terminated is never an easy job as the movie demonstrated. Usually the employee’s manager and a HR representative will attend the meeting. The meeting should be prepared for in advance and focus on the facts including the decision to terminate, reasons supporting the decision, the date the decision is in effect, review COBRA and any other relevant separation information, a review of any non-competes, policies on references, and informing the employee who they can contact with any issues.
5. After the termination- the employer should prepare a brief explanation about why the employee is no longer with the organization to avoid rumors. Any reference requests should be dealt with in accordance to your organizations policies and procedures.
6. Be aware of the legal challenges- An employer should be aware of several legal challenges with terminations including but not limited to contractual claims, tort claims, claims of constructive discharge, and claims based on federal state and local legislation. Prior to the termination, the employer should have reviewed the termination case for any red flags that might arise with the termination.

As in the movie, terminating an employee is never a simple task and it’s something that every manager and HR professional should take seriously. While it’s important to follow the steps in the process, I have also learned that it’s just as important to not remove the “human” out of human resources and be aware you are dealing with a person, not just a number.

Social media networking sites provide a great opportunity for organizations for marketing, employee engagement and recruiting efforts. Employee’s are “tweeting”, updating statuses on facebook and even “be-friending” their peers. However, with the reward does come at a risk. How high the risk depends largely on the plans and policies in place to address the risk. If your company doesn’t currently have a social networking policy, read on to discover why it’s an important risk management tool!

Whether or not you currently use social media for personal or professional purposes, it is increasing in popularity within organizations. Many individuals and companies that utilize Twitter or other social media websites want public recognition with the intention of attracting followers, fans, etc. The risk that is involved is monitoring what employee’s say, how they say it and when they say it to ensure your business is properly represented.

As I mentioned earlier, where there is risk, there is also reward. The social media arena is no different. To help manage risk, companies should provide a brief written policy about company expectations regarding social media usage. This might complement an already-existing policy on e-mail and Internet communications. Even if you’re not currently using social media tools for business reasons, you still should put together policy about employees’ personal use. If a company ignores the impact of online social networks, the company’s silence might cause confusion amongst the employee’s.

As you are reviewing your policies, below are some factors to keep in mind:

1. Company approval is required for authors who use electronic resources of the company to send tweets, status updates or other public messages.
2. Any messages that might act as the “voice” or position of the company must be approved by the company.
3. Any message posted to a personal networking sites regarding job related content or about the company should require the employee to identify themselves as an employee of your company and use a disclaimer and make it clear that these views are not reflective of the views of your company. “The opinions expressed on this site are my own and do not necessarily represent the views of (insert your company name).”
4. Any identification of the author, including usernames, pictures/logos, or “profile” web pages, should not use logos, trademarks, or other intellectual property of the company, without approval of the company.
5. Written messages are, or can become, public. Use common sense when sharing messages.
6. The personal use of social networking web sites must not interfere with working time.

In addition to the policy itself, experts recommend having a brief policy statement outlining corporate philosophy on social media. The policy should specify sites or tools encompassed by the statement, who is permitted to use them and for what purposes, restrictions on usage and the consequences of infractions. As with any new policies, employees should sign an acknowledgment of receipt and understanding when the policy is released.

It’s clear that social media is becoming a more important part of how businesses operate. To avoid problems, employers need to set clear boundaries that depend on the corporate culture, the work environment and the industry. If you would like more information on how to utilize social media networking or on implementing a social networking policy, please contact your local Midwest Staffing Group Business Development Specialist.

With summer right around the corner, many companies are considering whether or not an internship program is something that would be valuable for their organization. Your company might even be in a similar situation! The U.S. Department of Labor (DOL) has released a new set of standards to help employers determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act (FLSA) for their services. The standards apply only to those interns working for “for-profit” private sector employers. The term “employ” is loosely defined and most internships in the “for-profit” private sector are viewed as employment vs. training. Therefore, the interns should be classified in private sector employers as employee’s and would be subject to at least the minimum wage and overtime compensation for work that exceeds 40 hours per week.

While most internships in the private sector are subject to minimum wage requirements, the Supreme Court has held that the FLSA definition of work cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria.

The DOL fact sheet provides a list of six criteria that must be applied when determining whether an internship should be considered training rather than employment:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment.
2. The internship experience is for the benefit of the intern.
3. The intern does not displace regular employees but works under close supervision of staff.
4. The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations might be impeded.
5. The intern is not necessarily entitled to a job at the conclusion of the internship.
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these factors apply, an employment relationship does not exist under the FLSA and the law’s minimum wage and overtime provisions do not apply to the intern.

If your organization is interested in implementing an internship program this summer and you would like more information on FLSA standards, please contact your local staffing office. Midwest Staffing Group offers options for internships in addition to our standard temporary and direct placement staffing solutions!

Finally, experts advise that because of the variety of laws and legal issues that might arise, internship programs should be reviewed by counsel prior to implementation.

The DOL plans to continue reviewing the need for additional guidance on internships in the public and nonprofit sectors. For additional information, visit the DOL’s wage and hour division web site or call the agency’s toll-free information and helpline, 1-866-4USWAGE (1-866-487-9243).

Today’s companies are utilizing temporary employees more than ever before. As the number of companies utilizing a temporary workforce grows, so does the need to take a closer look at employment law in this area. The ideal way to avoid co-employment issues is to partner with an experienced staffing provider that has established policies to ensure compliance with employment laws.

What is Co-employment?

Co-employment arises in situations where two companies maintain control over an employee’s work. This typically occurs when companies utilize temporary or contingent employees as part of their workforce.

In most temporary staffing arrangements, the client is responsible for the day-to-day direction of the temporary employee, while the staffing company is responsible for all of the other employment aspects of the temporary employee’s assignment. Typically, a provider of staffing services:

1. Recruits, screens, interviews, hires, disciplines and terminates the temporary employee.
2. Maintains all necessary personnel and payroll records, including drug screens and background checks.
3. Computes wages and withholds applicable taxes.
4. Remits employee withholdings to and makes employer contributions for federal FICA and federal and state unemployment insurance payments.
5. Pays net wages directly to the temporary employee.
6. Provides Workers’ Compensation insurance coverage.
7. Resolves the temporary employee’s complaints and grievances.
8. At the request of the client, for any valid legal reason, removes the temporary employee assigned to the client.

How Midwest Staffing Helps Manage Co-employment

For the co-employment issues described above, we partner with our clients to ensure that each of us fulfills our role in the relationship with temporary employees. While client employees are regularly involved in the supervision of the actual work performed by our temporary employees, we take great care to ensure we maintain control of the employment relationship at all times. We accomplish this by adhering to a few best practices:

1. All aspects of the economic relationship with temporary employees (e.g. payroll, raises, bonuses, benefits) are administered by Midwest Staffing Group without client involvement. The client provides performance feedback to determine which temporary employees are eligible for bonuses but Midwest Staffing administers the programs.
2. All communications regarding the length or termination of employment are handled by Midwest Staffing Group without client involvement.
3. Employment-related issues that arise between temporary employees and client employees are promptly communicated by the client to Midwest Staffing Group staffing managers. This practice enables Midwest Staffing Group and the client to resolve these issues effectively.
4. We have implemented an open communication policy so that temporary employee issues are recognized early and addressed by Midwest Staffing Group staffing managers before they escalate.

By implementing the above practices, Midwest Staffing Group has been successful in avoiding co-employment issues with our clients. In addition, if issues should arise, we have the support of our experienced human resources and legal staff to advise and assist in these matters. We are committed to providing superior service to our clients in all aspects of our partnership, from properly managing co-employment risks to supplying a high quality workforce!

Congress and the President have extended and expanded the COBRA premium subsidy which will allow more individuals to take advantage of federal assistance. The new legislation is part of the Department of Defense Appropriations Act, 2010 which extends the COBRA subsidy’s eligibility period for two months and extends the maximum duration of the federal assistance from nine months to 15 months. Employers will be required to provide additional notification to qualifying employees of regarding their rights under the Act.

At this point, the Department of Labor (DOL) has not provided a sample of the additional notice required under the provision. However, the new provision does require additional notices describing the new 15-month premium subsidy and other amendments. It will be important for all employers’s to stay up to date regarding the new notices and any sample’s issued by the DOL. Notices should be sent to all assistance-eligible individuals who are on COBRA on or after November 1, 2009, or whose qualifying event is a termination of employment occurring on or after that date.

Credit/Refund Processes for COBRA Subsidy Extension

Credit and refund procedures will be necessary to accommodate assistance-eligible individuals (AEIs) who paid more than the required 35 percent COBRA premium since the enactment of the subsidy extension. We recommend working closely with your benefits department to ensure participants receive the proper refund and that the amount your organization paid out is reimbursed through a premium reduction through a payroll tax credit. As always, Midwest Staffing Group is available as a resource and will keep your organization updated on any critical changes!

Over the past several months, there have been many releases from the Federal government regarding how to keep children, elderly adults, and those with weak immune systems healthy should there be a H1N1 or other flu pandemic outbreak. While these are all important topics to consider; there are also key items that employers must be aware of regarding the spread of the H1N1 virus in the work place. This article will focus on specific labor law issues and how to prepare your organization. For more detailed information and a FAQ section, please consult the government website: http://www.flu.gov/faq/workplace_questions

In addition to considering the government’s FAQ section, it is recommended that employers also should be guided by federal employment law, as well as their own employee handbooks, manuals, and contracts (including bargaining agreements), and any applicable state or local laws.

Seasonal Flu versus a Pandemic

The first issue to consider is if the outbreak is a seasonal flu or a pandemic. According to the Occupational Safety and Health Act (OSHA), a seasonal flu is a periodic outbreak of respiratory illness in the Fall and Winter in the United States. A pandemic refers to a worldwide outbreak of influenza spread from person to person. When there is a pandemic, the likelihood of infection increases as the virus spreads throughout the population; possibly without vaccinations.

Family Medical Leave Act

An employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve weeks of continuous or intermittent leave under the FMLA. The 2009 revisions to the FMLA clarified that an employer’s normal time-off polices dictate who an employee reports their absence and whether that time off will be paid. Employers still retain the right to require a medical certification for the serious health condition of an employee or a qualified family member. Employers should review their policies now to ensure that their policies are written clearly and up-to-date before a pandemic flu outbreak.

Americans with Disability Act (ADA)

Recently, the EEOC issued guidance with respect to the ADA and the H1N1 flu. Under the ADA, an employer’s ability to inquire about an employee’s disability status is limited by when the employer makes the inquiry. It is recommended that employers review when it is permissible to make such inquiries. While employers are limited in their ability to make individual employee disability inquiries, the EEOC an employer may make broad, general inquires of its workforce. For example, an employer may ask its workforce whether certain conditions (such as school closing or reduced public transportation) will affect an employee’s ability to come to work.

The Fair Labor Standards Act

Employees who are not infected and are able to work may find that they must “fill-in” for absent, infected co-workers, In turn, they may find that their job descriptions are significantly altered. A change in a job description has implications for an employee’s exempt/non-exempt status and overtime compensation. Should there be an outbreak, employers may choose to allow certain categories of employees to telecommute. This is recommended by both OSHA and the CDC, but employers should be aware that it may impact measuring and tracking time worked for exempt employees and workplace safety/workers’ compensation issue. If a telecommuting option is to be implemented, consultation with a legal counsel is recommended to ensure compliance with FLSA/workers’ compensation.

Workers Compensation

Employees who face a greater risk for infection from a pandemic flu may be entitled to workers’ compensation for their medical expenses and lost wages if they contract the virus while on the job. While this may not impact all employers equally, those in the medical/health care field should consider the implications of increased claims.

There are a multitude of employment laws that Human Resource Professionals must consider regarding the issues posed by H1N1. A proactive approach is recommended in preparing to handle various scenarios that may result from a pandemic such as increased use (and possible abuses) of sick time, increased exposure to litigation, and new government regulations. Midwest Staffing has taken a pro-active approach and has an operational contingency plan in place should a pandemic outbreak take place. We are prepared to continue to service our clients to the best of our abilities under tough circumstances!