EBS Consulting Blog

In a recent case in Pennsylvania, an insurance agent was talking on his cell phone while driving in his personal car when he dropped it onto the floor. Bending down to pick it up, he ran a red light and crashed into a motorcycle, killing the operator. The operator’s family sued the insurance firm for contributing to the accident. The firm argued that the accident occurred outside the scope of employment because the accident occurred at 9:30 pm on a Saturday night. Neither the car or the cell phone was owned or provided by the agency. The agency settled the claim for $500,000. CAUTION: If your employees use cell phones for business purposes, be sure to have a policy that requires employees to pull over while talking on the cell phone, or at the least, provide hands free devices!

After a male employee retired, a female employee was promised a promotion and a raise in pay if she assumed some of the retired employees responsibilities.  While she accepted the new responsibilities and performed them satisfactorily, neither the raise or the promotion ever happened.  After she complained, she was put on probation and later fired.  She sued under the Equal Pay Act and was awarded $105,000 by the court which stated that even though she did not have the same job title, she was essentially performing the same or similar duties as the retired employee and therefore was entitled to the same pay.  Caution: While it is not unusual to reassign duties when an employee retires, be sure to evaluate the possibility of possible gender or age bias.  Examine whether employees working under similar conditions are paid equally for jobs requiring the same effort and responsibility.

The recently revised Fair Labor Standards Act (FLSA) now requires overtime pay for previously exempt white collar workers. As a result of these new regulations, HR professionals are confused and lawsuits are increasing. So how do you avoid the problem? Under the new overtime laws, white collar employees who earn less than $455 per week are automatically eligible for overtime pay. Employees who earn more than $100,000 a year and perform at least one of the defined exempt duties are not eligible for overtime. The problem arises for those who fall in between these salaries. You must analyze the job duties to determine if they are exempt from overtime if they fall into one of the 5 exempt categories: executive, administrative, professional, sales or technical. Advise? review job descriptions carefully, job title alone is not a determining factor. For more information regarding the new FLSA rules, contact: www.thehrspecialist.com/whitepapers.

In many cases, it makes sense to require employees to communicate effectively and clearly in English. The EEOC is warning that overly broad policies may violate national origin discrimination law. While it is clear that you can require a bank teller or salesperson to speak fluent English, the same does not apply to construction workers or even computer programmers. Requiring English may only be required for the effective performance of the position. Bottom line: Do not require a greater degree of fluency than necessary for the job. Be sure that you can identify a legitimate business reason such as safety or communication with customers. For EEOC guidelines on English only policies go to www.eeoc.gov/origin.

Advise hiring managers to refrain from writing ANYTHING on applications and resumes. In most states, applications must be retained for a reasonable period of time. Making notes including secret codes or personal rating systems could create a dangerous paper trail that may be difficult to explain later. For example, if the interviewer circles the graduation date from college, it could be evidence of possible age bias. Notes regarding method of transportation, child care arrangements or marital status are definitely opening the door for liability. Suggestion? Train interviewers and supervisors the do’s and don’ts of interviewing applicants. Leave the pens on the desk!

It is generally assumed that an employer is not responsible for employees while they are commuting to and from work. Normally, that is true, but an employee who feels ill or is impaired at work, or suffers an on the job injury and either voluntarily leaves the workplace or is sent home by their supervisor may be the employers responsibility! If the employee is involved in an accident while returning home or en route to seek medical attention the employer could be sued. Case in Point: Bussard v. Minimed Inc., California Appellate court ruled that the company should have foreseen a potential risk and did not stop it when a supervisor sent an employee home who fell ill after being exposed to fumes from a pest control spray at the plant. The supervisor offered to send the employee to the company doctor, but she refused. While driving home she rear-ended another car. She told the police that she felt lightheaded just before the accident. The reason in the other car sued the company for their injuries. CONCLUSION - Pay attention to any illness or injury complaints that could be related to work. Provide transportation to medical care or home. The same applies whenever driving may be impaired such as late night work, when alcohol has been served or suspected. The cab ride will be a bargain compared to the cost of defending a lawsuit.