January 2015 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

Third Party Discrimination

Employers often deal with customer complaints ranging from slow service to under cooked food. But what happens when you receive a customer complaint claiming discrimination?

You receive a letter in the mail that states:

We came in on Saturday for a special dinner celebrating our 10 year anniversary. We were pleasantly greeted and seated right away. The server was very knowledgeable and gave us great meal recommendations. When she asked us if we were celebrating a special occasion, we told her about our anniversary. She looked stunned, nodded and walked away. The rest of the evening she rarely came by our table. It took her 30 minutes to come back and take our order and it took over an hour for our food to arrive, which was cold indicating it had been sitting for a while. When we tried to ask about the delay she was very short and rudely replied, “If you don’t like it here, why don’t you go somewhere else”. We noticed that other parties she waited on were treated well and were given excellent service. I’m not sure why we were treated this way, but I can guess it is because my partner and I are a same-sex couple. I don’t wish for anyone else to be treated this way and hope the issue is addressed.

What do you do with this complaint?

A.  It’s just a letter expressing this person’s experience. Put it in the circular file.

B.  This may be a discrimination complaint, but this person is not your employee. You can’t do much about the issue. Just send him a coupon for his next meal.

C.  Anti-Harassment laws protect customers, clients, and vendors from harassment and discrimination. You will need to investigate, make a determination and take any necessary remedial action to ensure discrimination stops and does not continue.

Answer:  C     Third parties (e.g., customers, vendors, contractors, or any third party associated with the company) are protected from discrimination and harassment. Employers must take all complaints seriously and should handle complaints from third parties the same way a complaint made by an employee is handled. An investigation should be conducted immediately, in which all parties are interviewed and questioned about the incident. If you determine discrimination occurred, remedial action should be taken to stop the harassment/discrimination from happening and keep it from happening again. Remedial action can be disciplinary action, up to and including termination for the individual that acted unlawfully. In any case, anti-harassment and discrimination training should be provided to your employees on a regular basis to ensure they understand what kind of behavior constitutes prohibited harassment and discrimination toward co-workers and third parties. It is also important to note that employees can be harassed by a third party and these situations must be handled in the same manner.

Applied Staffing Solutions Applied Business Solutions
Divisions of The Applied Companies
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December 2014 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

End of Year Employee Gifts

Your company has had a fantastic year! You know that your employees deserve a lot of the credit for the success, and you’d like to give them a holiday gift. Maybe you could give choices of cash, gift cards, or one of those delicious honey baked hams – save them from having to cook.

You remember something about gifts being taxable, but don’t remember if:

A.  You can give your employees any gift of any value without it being taxable;

B.  All employee gifts are taxable income to the employee;

C.  Gifts up to $100 are not considered taxable;

D.  Nominal gifts are not taxable, but cash and gift cards always are.

Answer:  D     One would certainly think you could give an employee a gift without creating a tax consequence for them. However, under the IRS guidelines, only “De Minimis” benefits may be excluded from an employee’s wages.

A de minimis benefit is any property or service you provide to an employee that has so little value that accounting for it would be unreasonable or administratively impracticable. Of course, if you provide the de minimis benefit every week, it should be taxed; but once a year, it would not be taxed.

Examples of de minimis benefits include nominal gifts for birthdays or holidays, holiday turkey or ham, flowers, plaques, a gold watch for retirement, occasional parties or picnics, occasional tickets for theater or sporting events, or parking for the month, so long as the value is less that the statutory limit for qualified transportation fringe benefits. Cash or gift cards/certificates will always be taxable under IRS guidelines. For those employees who choose cash or gift cards, you would have to impute the tax based on the value.  Our recommendation for the holiday gift? The scrumptious honey baked ham or other nominal gift. You can give it without a tax consequence for your employees, which employees always appreciate!

Applied Staffing Solutions Applied Business Solutions
Divisions of The Applied Companies
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September 2014 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

Mental Health Issues – Not Easy!

Consider the following situation:  You hired an employee in November. He seemed fine in the interview…just a little nervous. After he was hired, you observed that he is a slow learner (maybe a learning disability), and has a difficult time with criticism.

Now, the employee has been having what appear to be panic attacks. You have moved him to several different positions. Unfortunately, he is still having panic attacks, hindering his ability to interact with the public, which is an essential function of his job. Though you are willing to give someone a chance, you really do not think this guy is going to get better. You would like to terminate him; after all, he is an at-will employee.

Is termination the best option?

A.  Absolutely; though you feel sorry for the guy, you need people who can work, and you do not have time to babysit them.

B.  Maybe; since he has not told you he has a disability or needs an accommodation, you do not have to worry about potential disability discrimination.

C.  Yes; if he has some type of physical condition or disability, you understand that you would have to accommodate him, but you cannot accommodate a mental problem.

D.  No, or at least not yet. You need to learn more about his condition before making any decisions.

Answer:  D    No, or at least not yet. You need to learn more about his condition before making any decisions. The Americans with Disabilities Act (ADA) protects individuals from, among other things, discrimination in employment on the basis of their disability. If an employee can perform the essential functions of the job with or without a reasonable accommodation, employers may not take adverse action on the basis of the disability.

Mental disabilities are often more difficult to address in the workplace because of the stigma involved, and lack of understanding. In our situation, the employee may have a mental disability, and began having performance problems related to this possible disability. The employee has not disclosed that he has a disability, although the supervisor suspects it.

Let’s presume the supervisor decides (appropriately) to talk to the employee about his performance. In the course of the conversation, the employee may blame his performance problems on a mental disability.  If an employee states that his disability is the cause of the conduct or problem, or requests accommodation, the employer may still discipline the employee for the misconduct if the conduct rule is job-related and consistent with business necessity, provided it holds other employees to the same standard. 

If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help him avoid future misconduct.

If an accommodation is requested, the employer should begin an interactive process to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective. The employer may seek appropriate medical documentation to learn: 1) if the condition meets the ADA’s definition of disability; 2) whether and to what extent the disability is affecting the employee’s conduct; and 3) what accommodation(s) may address the problem. The employer should provide the employee with his job description, and have his doctor evaluate his ability to perform his specific job function.

An employer may not refuse to engage in the interactive process with an employee who has been subject to discipline, as this would be a violation of the ADA. Although mental disabilities can be more difficult to address, employers have an obligation to do so. If the employee continues to have performance issues or violates conduct standards, despite the reasonable accommodation, employers may move forward and consider termination. Even so, there is likely to be risk associated with terminating an employee who has a mental disability, and employers should not do so without first talking to an employment law attorney or human resource professional.

Applied Staffing Solutions Applied Business Solutions
Divisions of The Applied Companies
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