Termination Based on a Leave of Absence

leave of absence

Most employers are aware that employees may be eligible for leave under the Family Medical Leave Act (“FMLA”) to receive a maximum of 12 week per year. If the employee on leave wants to file for additional time off, employers should proceed cautiously. While the employee may no longer be entitled for the additional leave under FMLA, employees may be entitled to continued leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).

 

Example: An employee protected under the ADA asks for an additional week off to fully recuperate from a serious illness after already taking 12 weeks off under FMLA.

 

If the employer does not face undue hardship from this additional week, the employer is obligated to…

  1. Allow the employee the additional week off with health insurance, provided that the employee pays her premium.
  2. Return the employee to her original position, assuming they are qualified to perform the essential functions of her job (with or without reasonable accommodation).
  3. If reasonable accommodation to return her to her original position cannot be made, then the employer must still reassign the employee to an available vacant position that the employee is qualified for with or without accommodation.

 

As you may have noticed, the employer’s responsibility under ADA is more extensive than in FMLA and requires a separate analysis. Under FMLA, employers may terminate the employee if they are no longer able to perform the essential functions of their original position after the 12 week period. An ADA analysis is more unpredictable. The employer’s obligations under ADA are primarily dependent upon any undue burden on the business, which includes significant costs, disruptions, and safety concerns that may arise from the employee’s absence.

 

The employer’s ability to prove undue burden can be difficult. In order to better protect themselves, employers should…

  • Confirm their employee handbooks indicate that leave is granted after an individual assessment. Employers may not apply a no-fault termination policy!
  • Maintain updated and (physically) descriptive job descriptions so that the essential functions of the job are clear.
  • Proactively assess an employee’s FMLA and ADA qualification when an employee requests leave.
  • Engage the employee in an interactive process (communicate and document interactions regarding ability and time of return) throughout the employee’s absence. If you do not attempt to engage in conversations, you lose an important defense if the case is litigated.
  • Document the effects of the employee’s absence…
    • Any decrease in productivity from temporary workers or workers assigned the employee’s tasks
    • Lower quality of work
    • Lost sales
    • Customer service issues
    • Deferred projects
    • Management burden increases
    • Co-worker stress increases
    • Decrease in morale

 

Employment termination based on leave requests can be fraught with legal liability. Call us before finalizing these decisions to avoid costly discrimination litigation.

WHAT ARE THE TRUE “SAVINGS” OF TIME CLOCK ROUNDING?

timeclockAlthough there is no Nevada law regarding time clock rounding the Office of the Labor Commissioner recently conducted a thorough review of statutes, regulations and case law. The Nevada Labor Commissioner issued an Advisory Opinion that time clock rounding can be appropriate as long as, over time, the employee is properly compensated for all time actually worked.

The practice of time clock rounding has been around a long time. If you are an employer that currently uses this practice, beware. There has been a significant increase in lawsuits filed by employees under the federal Fair Labor Standards Act (“FSLA”). The federal regulation on time clock rounding states, “It has been found in some industries, particularly when time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually worked. For enforcement purposes this practice in computing work time will be accepted provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” (29 C.F.R. § 785.48(b)) If you are an employer that believes changing its practice of time clock rounding will cost you money, you could be at risk for a lawsuit.

The Department of Labor (“DOL”) does not prevent employees from suing over rounding. It is uncertain during the course of an investigation, the rounding will show in the employee’s or the employer’s favor. If an employer uses a payroll software program or a computerized timekeeping system that can easily track all time with no rounding, the benefit the employer may receive from rounding does not out weight the risk of a lawsuit.

If you are an employer that does round time, do so consistently and in a manner clear in your record-keeping.  Make sure you state the method clearly in your employment policies and apply it equally to all employees. It will make you less vulnerable to a FLSA claim or lawsuit.  Always check with your attorney before changing any time keeping practices to prevent any issues under FLSA’s requirements.

It’s Complicated: Limits of At-Will Employment

employee terminationWhat is at will employment?

At will employment is an employment relationship in which you may fire your employee at any time for any reason and your employee may resign at any time for any reason. This is the default employment relationship in Nevada, absent an employment contract with specific terms.

Beyond the simple definition…

As a practical matter, you should not capriciously fire your employees! At will employment does NOT mean that you face no liability if you fire your employee. Numerous federal and state laws and case law protect your employee from a wrongful termination. For example:

Statutory Protections

As an employer, you deal with numerous federal regulations; failure to meet these regulations can also give rise to wrongful termination claims. Termination based on the following non-exclusive list of federal protections would give rise to wrongful termination claims:

  • FMLA-requesting or taking family leave
  • Equal Pay Act of 1963-gender
  • VII of the Civil Rights Act-protected classes
  • Age Discrimination in employment Act of 1964
  • Rehabilitation Act of 1973-disability status
  • Americans with Disabilities Act (ADA)-disability status
  • National Labor Relations Act (NLRA)-union membership

You should consider the liability of firing during the termination procedure. You may not have even thought about the employee’s protected status when making your termination decision, but it is important to ensure there is no miscommunication.

Public Policy Exception

Various state laws and court decisions also eroded the definition of at-will employment due to public policy considerations like…

  • Not following proper termination procedures.
  • Arbitrary firing though employee handbook indicated for cause termination only.
  • Employee’s refusal to commit an illegal act.
  • Retaliation for filing worker’s compensation.
  • Retaliation for whistle blowing (alerting to employer’s illegal acts).

Covenant of Good Faith and Fair Dealing

In extreme cases when the employee proves that the employer acted in bad faith, Nevada courts have awarded employees large damage sums, for example a Las Vegas Hilton executive was awarded $600,000 for her wrongful termination. An employee may also have other tort claims based on defamation, intentional infliction of emotional distress, invasion of privacy, etc.

Better safe than sorry

At will employment does provide you with some freedom in termination decisions. However, it is important to have a proper termination procedure in place to minimize your exposure to future law suits from your disgruntled employees. For more information, read our blog article on best practice termination procedure.

CHANGES TO CHARTER SCHOOL LAWS

schoolhouse 

The 2013 legislative session provided significant changes in the Charter School funding and formation laws. These changes are outlined in Senate Bill 384 (“SB 384”) and make modifications to Nevada Revised Statues Chapter 386. There were many changes, but three changes stand out as most significant.

Incorporation of a Charter School as a Non-Profit Corporation under NRS Chapter 82.

Prior to the modifications to NRS Chapter 386, a charter school was formed pursuant to a grant of a charter by the sponsoring entity resulting in the school operating as a quasi-governmental entity. Prior to this change, Nevada charter schools did not incorporate as non-profit corporations. Effective July 1, 2013, charter schools are now allowed to incorporate as a non-profit corporation under NRS Chapter 82 (NRS 386.553). As part of this change, this will allow charter schools the opportunity to apply as a non-profit corporation for tax-exempt status with the IRS.

The ability for the Board of a charter school to form a limited liability entity is significant. Once the entity is formed there is limited liability for anything that happens in the schools operations and for occurrences on the school property. Further, fundraising may be easier as the school will now be able to provide donors with a determination letter from the IRS that clearly shows its tax-exempt status.

 

Removal of Requirement of Charter School to Provide a Security Interest in the Charter School’s Real Property to the State.

 

Prior to the modifications to NRS Chapter 386, charter schools were required to assign a security interest in all property, buildings, equipment, or facilities to the State which were purchased with money received from the State. Due to the fact that charter schools are State funded, this essentially required a security interest in all real property owned by the school. This requirement resulted in many charter schools forming separate tax-exempt, non-profit corporations as supporting organizations to hold property for the benefit of the school. SB 384 deleted the security interest requirement and now allows for charter schools to own property without providing a security interest to the State. Further, SB 384 now specifically allows a charter school to acquire real property and facilities with public money, provided that sponsor approval is obtained.

 

By allowing charter schools to incorporate and obtain their own tax-exempt status, there is now the possibility of folding any supporting organization into the school’s non-profit corporation to run the school’s operations and hold property. This could result in significant cost savings for the school as the costs of maintaining one entity are significantly less than the costs of maintaining two entities. Further, the board of directors can be consolidated into one governing body resulting in more concise operations.

 

Charter Schools can now Finance the Acquisition/Construction of Real Property by Working with the Nevada Department of Business and Industry to Issue Bonds.

 

Prior to SB 384, charter schools had to go outside of the State to find an issuer to issue bonds and other obligations to finance the acquisition, construction, improvement and restoration of property, buildings and facilities for charter schools. SB 384 authorizes the Nevada Department of Business and Industry to issue such bonds.

 

This means that charter schools are now able to directly own their real property and issue bonds and other obligations for the financing of property purchases. This allows for a simpler financing transaction and allows for the charter school governing body to have full control of its facilities, while also maintaining limited liability for the liabilities associated with the operations and property.

 

 

 

Small Talk, Big Problems: Unexpectedly Dangerous Interview Questions

Employee LawMost professionals think they know how to do a proper interview without a lawyer telling them what to say. Some interviewers often start out with small talk, attempting to build rapport with the interviewees and make them more comfortable. Seemingly innocuous questions during this interview process may present a dangerous liability for the company. They can lead to discrimination or wrongful-discharge lawsuits. Here are some surprisingly problematic questions to show you the dangers of improperly trained interviewers.

 

Here’s what NOT to ask during a job interview:

  • Is it Ms. or Mrs.?
  • Is that your maiden name?
  • Do you have any childcare/caregiver responsibilities?
  • Are you pregnant?
  • What’s the name and address of a relative we can notify in case of an emergency?
  • When did you graduate from high school/college?
  • Where’s that accent from?
  • Are you a citizen?
  • Why are you in a cast?
  • Have you ever been arrested?
  • When did you graduate from high school?

 

All these questions inadvertently hint at one of the federally protected categories for employment purposes. Can you see how each implicates one of these categories? The categories are:

  • Race
  • Color
  • Religion
  • Gender (including pregnancy)
  • National origin and citizenship
  • Age (40 and over)
  • Disability (including perceived disability)
  • Genetic information
  • Veterans, active-duty or application to the uniformed services

 

While some of these questions just cannot be asked, other can be rephrased appropriately:

  • This position requires long and irregular hours are you able to fulfill this essential function of the job?
  • What’s the name and address of a person we can notify in case of an emergency?
  • What schools have you attended?
  • If you are hired, will you be able to submit verification of your legal right to work in the US?
  • Have you ever been convicted of a crime?

 

Developing a standard set of questions to choose from during interviews is a good practice and ensures consistency. You can make sure that the questions do not violate any laws and eliminate potential discrimination claims. If you are uncertain about the legality of an interview activity, contact Drinkwater Law Offices at (775) 828-0800.

Virtual World: Your Trademark and Social Media

global connectivityBenefits of Using Social Media
When you use a social media site, you are no longer the only brand builder. By engaging with consumers on social media sites, you will change the brand either positively and negatively. In general, brand recognition tends to be amplified on social media. Here are some benefits of building your brand through social media:
• Maximizes brand exposure: Trademarks that have secondary meaning associated with them have the strongest protection because consumers clearly perceive the brand as a source indicator. Social media can expedite secondary meaning acquisition.
• Lower marketing costs: The effectiveness of social media campaigns can render other forms of media moot, reducing your marketing costs.
• Search engine optimization: The more popular you are on social media sites, the more prominent your search results online. Notoriety in one online site may serve as a catalyst to increase your popularity in others.
• Humanizes the company: While your brand may present your professional image, your social media site can have an entire persona that humanizes you in the eyes of your consumers. Consistent interaction with your audience can build a loyal following.
• Consumer feedback: You can conduct market research on social media sites to modify your products to better fit consumer needs.
• Business networking: You also have the choice of interacting with other businesses to build your professional image.
Relationship with Social Media Platform
Social media platform agreements are non-negotiable, unilateral contracts that give the social media sites broad rights over your trademark. While social media sites do not necessarily benefit from repelling businesses from exercising its full contractual rights, understanding and adapting to agreement is important. Consider the following aspects of your relationship with the social media site:
• Use of your trademark: Social media sites often allow other users to interact with your posts. For example, Youtube allows users to use, reproduce, distribute, display and perform your uploads and Twitter allows users to use, reproduce, and create derivative works from your uploads. You no longer have exclusive rights to your work on that site, which limits quality control of your brand online.
• Licensing issues: Social media sites are international but you may have a territorial restriction on your use of the trademark through a license. Social media postings may conflict with third party trademark licensing agreements.
• Indemnification: You often have to promise social media sites an arm and a leg to compensate them for any injury you might cause. Know what you are promising before using these sites.
• Unlimited amendments with little or no notice: You promise to allow social media sites to change their policies and procedures at any point for any reason. This change may come with little or no notice to you, but you still have an obligation to abide by these new changes. While social media sites will probably not abuse this right or risk losing business interests, you still need to monitor these changes and respond accordingly.
Relationship with Users
• Inadvertent infringers: In some ways the inadvertent infringers are harder to manage than intentional infringers. There are many fans of your trademark who may not understand the legal ramifications of the improper use of your trademark. You want to maintain a positive relationship and continue to build rapport with your consumers while protecting your trademark rights. For example, two fans of Coca-Cola started a Facebook fan site without the company’s knowledge and accumulated millions of fans; it became one of the most popular sites on Facebook. As the company did not start the page, they had no control over the content or trademark use. Instead of sending a cease and desist, Coca-Cola contacted the fans that started the site and partnered with them to manage the page. It is important to educate your consumers and communicate with them to ensure the proper use of your trademark on social media sites.
• Cyber squatters: Even if you choose not to form a business page for your social media site, you must still monitor these sites for infringers. Imposters may use your business name for their own purposes online and social media sites do not necessarily filter out all imposters. Cyber squatters can do significant damage to your reputation and consumer good will in a relatively short amount of time. You should report such abuse to the social media site or send cease and desist letters to enforce your rights.
Social media can be a great tool for growing your business, but it can also harm it. Connect your trademark lawyer with your social media and marketing staff to ensure that your business is protected.

WHEN WILL YOU NEED TO USE A POWER OF ATTORNEY?

Golden scales of justice on a white background

 

The power of attorney allows you to grant your authority (as the principle) to perform certain tasks to another (the agent). You may grant a general power of attorney that In Nevada, a general power of attorney allows your agent to manage…

 

  • real estate
  • personal property
  • investments
  • financial matters
  • businesses
  • insurance
  • trusts
  • legal claims and litigation
  • personal and family maintenance
  • government benefits
  • retirement plans
  • taxes
  • gifts

In Nevada a power of attorney that does not specify a termination date continues after the principle becomes incapacitated.

An individual may desire to be more limited in the powers that are granted and can do so with a specific power of attorney. Some examples include:

 

  • The power of attorney for the performance of mundane tasks in your stead such as representing you at the DMV, paying utilities, managing your insurance, etc.
  • The power of attorney for limited performance of financial (or other) decisions, which can also be for a limited time frame (such as an extended vacation). This power of attorney may be revoked at any time or for any reason, making it useful for temporary use.
  • The power of attorney which grants powers after a specific event or circumstance has occurred, such as incapacitation. This power of attorney along with an advanced health directive or living will gives you the ability to determine how medical decisions are made on your behalf. When choosing an agent for health care decisions, be sure the person is trustworthy and decisive and will carry out your directions even while in emotional turmoil.
  • The grant of a power of attorney in connection with a will or trust to ensure that your family and business are protected the way you intended.

 

If you think you may need a Power of Attorney, please contact Drinkwater Law Offices.

Series LLC

Housing InvestmentWhat is a series LLC?

A Limited Liability Company is a legal entity formed with the purpose of shielding the owner(s) from liabilities relating to the business. A series LLC groups numerous LLCs into different internal series under one parent LLC. Each series may have its own distinct business ventures and members and is shielded from liability from the other series.

Who may benefit from a series LLC?

In general, business ventures that generate passive income (income that does not come from an active role in the business) can benefit from being a LLC.   LLCs, for example, are great for real estate investment. Those who have or plan to have multiple LLCs to limit liability between different investments may benefit from a series LLC. A series LLC would allow an investor or business owner to combine all LLC filings under one parent LLC, which can greatly reduce administrative costs. Owners have the flexibility to place multiple types of business ventures under this one legal entity, while limiting liability between each venture. If one series in such an LLC is ever in a lawsuit, Nevada courts will recognize that each series has limited liability with respect to the other series. It is, however, unclear whether courts in states that do not recognize series LLCs would respect the series.

Potential disadvantages?

Start-Up and Tax Issues: While a series LLC has greater long term administrative cost reductions, it may cost more in the short term because of higher start-up fees. In addition, some CPAs are not familiar with the relatively new series LLC and may not understand its tax implications.

Bankruptcy: It is unclear under federal law if a series LLC would be treated as an individual with the right to file for bankruptcy independently. The principle of substantive consolidation may also be a later issue in litigation. Under Section 105 of the bankruptcy code, Judges have the ability to combine assets from distinct legal entities of the same owner to pay debtors.

Complexity: As a series LLC may have distinct interested parties in each LLC with different business ventures, careful structuring of the series is essential.

For a properly formed series LLC please visit Drinkwater Law Offices.

WHAT TO EXPECT FROM YOUR EXPECTING WORKER: NEW EEOC PREGNANCY DISCRIMINATION UPDATE

Sorting out her maternity leaveThe Equal Employment Opportunity Commission (“EEOC”) issued enforcement guidance on pregnancy discrimination in mid-July 2014. This guidance recognized the increase in pregnancy discrimination claims (from 3,900 charges in 1997 to 5,342 in 2013) and expressly incorporated pregnancy discrimination as a form of sex discrimination. The guideline also linked pregnancy discrimination to the American’s with Disabilities Act (“ADA”), after a broader definition of “disability” was added in the 2008 ADA amendment. EEOC considers pregnancy discrimination as its national enforcement priority and this new guideline can have significant implications for EEOC investigations and litigation. In addition, the Supreme Court granted cert to a pregnancy discrimination case concerning light duty for pregnant employees in July and will issue their opinion on the matter by July of 2015. This decision could render the guidance moot. This leaves a quandary for employers about whether to update their policies now or wait for the Supreme Court decision.

Does this law apply to me?

If you have 15 or more employees, the federal Pregnancy Discrimination Act (“PDA”) applies to you. As the Nevada law is less stringent than the federal law, the PDA will set the minimum requirements concerning treatment of pregnant employees. The PDA prohibits all forms of discrimination relating to pregnancy (including past, current, potential, and intended pregnancies and related medical conditions) in all stages of employment.

What do I need to do?

A good starting point is to treat your pregnant employee either as an employee that is temporarily incapacitated or as a disabled employee if she faces any medical impairment relating to her pregnancies (which trigger ADA regulations). In addition, consider the following checklist…

Hiring

  • When hiring, create a detailed job description with the physical requirements of the position. Be sure to include all essential functions of the position.
  • Do not ask any questions or make any comments related to a potential employee’s pregnancy. You may ask if the person believes that she will be able to satisfy all essential functions of the position.
  • Do not refer to any stereotypes associated with pregnancy during the interview or after.

Demotion and Raises

  • You may not discriminate based on pregnancy at any point in employment. Document all performance evaluations and employment decisions with detailed explanations just in case you must justify the termination in a court of law.

Terminations

  • It is illegal to discriminate against past, current, or potential pregnancies. Termination of an employee during a pregnancy or in a period after can be used as evidence for pregnancy discrimination suits. Be aware of your heightened litigation exposure if you terminate during this period.

Benefits

  • Review your insurance policy to be sure pregnant employees receive the same type of insurance care as other employees. The same type of insurance does not mean that you must offer all pregnancy related treatments. For example, you may exclude infertility treatments and abortions (if the life of the mother is not in danger).
  • NOTE: The guidance indicates that you must provide contraceptives if you provide health care of a similar type, such as preventative care. This directive may be modified after the Supreme Court’s decision in Burwell v. Hobby Lobby.
  • Be sure that you calculate vacation accrual and seniority for pregnant and other employees in the same manner. If vacation and seniority accrues during sick, injury, and other types of leave, it should also accrue during pregnancy related leave.

Policies

  • You MAY NOT force your employee to take her leave when she is pregnant even if you are doing so in her best interest. If her position involves an environment or tasks that could be hazardous to the fetus, you may inform your employee of the danger.
  • This is good time to review your leave compliance policy in general to ensure you are in compliance with other laws such as the Family Medical Leave Act (“FMLA”) if it applies to you.
  • Review your parental leave policy (leave for child bonding purposes), to ensure that mothers and fathers are governed by the same policy.
  • Install or incorporate a discrimination complaint procedure in your workplace. Be sure to include strong anti-harassment and anti-retaliation provisions and enforce them.
  • Review your policy for granting light duty. If you provide light duty for those sick or injured on the job you should also provide light duty to accommodate pregnant employees. This does NOT mean that you must always give light duty when it unduly burdens your company. It does mean that if you make exceptions in your light duty capacity for injured workers, you must consider similar exceptions for pregnant workers.
  • Review all policies to ensure that it does not disproportionately affect your pregnant employees.

 

 

Notice and Training

  • Update your supervisors and employees about their rights and responsibilities under PDA.
  • Train your managers to sensitively respond to requests and complaints related to pregnant workers.
  • As required by the Affordable Care Act, designate a private space for breastfeeding and give your employees a reasonable number of break times to use the facility. Notify your employee of her right to use the facility.

Reasonable Accommodation

If your employee experience pregnancy related medical impairments, they may be under the protection of the ADA. You must make additional reasonable accommodations in these situations.

  • Incorporate pregnancy related medical conditions into your preexisting reasonable accommodation request policy and procedures and notify your employees of the change.
  • Ensure your managers are aware of the broader definition of disability and train them to recognize pregnancy related medical conditions that would trigger the ADA.
  • Consider appropriate reasonable accommodations such as: redistributing marginal functions, altering how tasks are completed, modifying policies, purchasing equipment, modifying the work schedule, granting leave, assigning temporary light duty, etc.            Contact Drinkwater Law Offices before you act if you are uncertain about the legal ramifications.

Changes To Employment Law Posters

Employment Law Under both federal and state employment laws, employers are required to post specific employment materials for employees in a conspicuous area (such as a break or lunch room) and in a language employees understand. When there are changes to existing employment laws or new laws are enacted, the mandatory posting requirements also change. Accordingly, employers must be aware of and comply with changes in the mandatory posting requirements.

There have been several recent amendments to both state and federal employment laws and mandatory posting requirements. Effective November 21, 2009, employers with fifteen or more employees must post the updated “Equal Employment Opportunity is the Law” poster which includes information regarding the new Genetic Information Nondiscrimination Act (“GINA”) prohibiting discrimination against applicants and employees on the basis of genetic information. In addition, following are several recent changes to state employment posting requirements: 1) Effective October 20, 2009, the Nevada Unemployment Insurance poster must include a new website address for filing an unemployment claim online; 2) The Nevada Minimum Wage poster was recently updated to reflect an amendment to exemptions that apply to retail or service workers and to reflect the recent increase in the state minimum wage.

We recommend that employers obtain the mandated employment posters from a provider that notifies employers of posting requirement changes and provides updated posters (e.g. www.postercompliance.com).