May 01

Removing the Haze from Vaping in the Workplace

Vaping – some people despise it, others enjoy it, while many do not understand it.  However, vaping is no longer a trend to be dismissed as something “the kids are doing these days.”  Vaping has infiltrated various areas of our everyday life, including air travel, hotels and other accommodations, restaurants, and various commercial establishments.  Public education institutions, particularly middle and high schools, have begun revising their tobacco rules to prohibit vaping on school grounds.  It naturally follows that employers should begin considering how to address vaping in light of evolving laws.

To understand the impact of vaping on your workplace, employers should start from the beginning: what is vaping?  Vaping is the act of inhaling and exhaling aerosol, or “vapor,” emitted by an e-cigarette, vape pen, or like device.  Breathing into the device activates a battery, which heats up the heating component.  In turn, the heating component converts the e-liquid into an aerosol, which the user inhales into the lungs and exhales into the air.  Conventionally, the e-liquid, or “e-juice,” is comprised of nicotine laced with propylene glycol or vegetable glycerin-based liquid, as well as some flavoring agent.  The most popular vaping product to date is the JUUL, with a high quantity of nicotine equivalent to an entire pack of cigarettes.

In the past two years, regulators have concentrated on curbing vaping among adolescents.   Florida lawmakers have been relatively silent about vaping in the workplace until recently.  On April 29, 2019, Governor Ron DeSantis signed SB 7012, which prohibits vaping in an enclosed indoor workplace and requires proprietors to implement policies and procedures regarding smoking and vaping in their facility.  Violators face a $25 fine, 50 hours of community service, or mandatory participation in an anti-tobacco “alternative to suspension” program.  The new law is effective beginning July 1 of the next fiscal year.

Still, the general fog around workplace vaping creates liability risks for employers uncertain how federal, state, and local laws and regulations will interact with this evolving technology.  Until employers receive more guidance from Florida lawmakers, employers should be mindful of potential liability, particularly in the following areas.

Vaping and the ADA

SB 7012 mirrors Florida’s Clean Indoor Air Act (2013), which prohibits smoking tobacco products in most public and private business, including the workplace.  Therefore, employers should expect compliance to mirror the requirements of the Clean Indoor Air Act.  To start, employers will need to update signage to specify indoor vaping limitations.  While the Clean Indoor Air Act does not mandate employers to accommodate employees that smoke any substance, employers should prepare to designate a smoking area that is impermeable by secondhand smoke.  By limiting vaping to designated smoking areas, employers minimize the risk of jeopardizing other employees’ medical conditions, which may be aggravated by the chemicals in vape smoke.  To this end, small facilities may consider clarifying that a designated smoking area covers tobacco and vape smoking.

The unknown question is how vaping regulations will interact with Florida’s other recently enacted regulation – Florida’s medical marijuana law, §381.986, Florida Statutes.  These worlds will inevitably collide because tetrahydrocannabinol (“THC”) is available in an e-liquid form for vaping products.  THC is a chemical agent creating an intoxicating, hallucinogenic effect when consumed.  Therefore, employees vaping THC e-liquids in the workplace may be in conflict with an employer’s Drug-Free Workplace policy and create workplace safety concerns.

Unlike marijuana cigarettes, bongs, and other marijuana paraphernalia, THC e-liquid will be difficult to detect if smoked via a vaping product.  Accordingly, employers should anticipate implementing policies and procedures to regulate the nature of the vaping substance.

Employees Under Age 21

On April 5, 2019, the Florida Senate introduced HB 7119, raising the minimum age from 18 to 21 for purchasing tobacco and vaping products.  The House bill exempts active duty military members from this regulation.  Six other states have implemented similar legislation, including California, New Jersey, and Massachusetts, and five more have passed laws to implement this change within two years.

Currently, the bill does not create a duty to report the use of vaping products by individuals under age 21.  However, employers should be aware that raising the minimum age might create a black market for the purchase of vaping product, which may spill into the workplace.  Reminiscent of the Prohibition Era, this scenario may create liability for employers who know or reasonably should have known that vaping products are being sold to employees under the minimum age on the employer’s facility.

Regulators are tackling vaping from various angles, many of which have significant implications for Florida employers.  As the ever-growing vaping industry continues to develop new products, employers should closely monitor the new legislation and case law for guidance on how to modify its policies and procedures in compliance with the law.

Iggy Garcia focuses his practice exclusively on representing employers with their labor and employment needs.  He has extensive experience in both federal and state courts representing employers.  He has defended both individual and collective actions under numerous state and federal employment laws, including Title VII, the ADEA, the ADA, FMLA, FLSA, Florida’s private whistle blower statute, and all manner of retaliation claims.  Mr. Garcia has also defended employment related torts such as defamation, negligent retention, negligent hiring, assault, battery and fraud, as well as all manner of breach of contract claims.  Mr. Garcia has handled numerous trials and administrative hearings.

Mr. Garcia has been featured as a speaker at numerous human resources and legal conferences throughout Florida.

Mr. Garcia also represents employers in front of numerous administrative agencies such as the EEOC and the Florida Commission On Human Relations.

Mr. Garcia regularly advises employers on numerous day to day matters related to their employees both domestically and internationally.  He emphasizes a practical approach to problem solving while decreasing an employer’s exposure to potential liabilities.  Mr. Garcia’s fluency in Spanish further allows him to address employee issues where language barriers would otherwise prevent such.

Karen Smeda focuses her practice on representing and counseling employers in labor and employment law matters. Ms. Smeda developed her interest in labor and employment law while working as residential staff for the West Campus Housing System, where she became familiar with the policies and procedures used by large employers, like Cornell University. She also worked as a 2L law clerk for the U.S. Department of Labor during the summer of 2017.

Ms. Smeda graduated from Cornell Law School in 2018. During law school, she served as the Senior Notes Editor for the Cornell International Law Journal, a Managing Editor for the LII Supreme Court Bulletin, and on the Moot Court Board. She also participated as a member of Martha Pollack’s Presidential Task Force, serving on a sub-committee informing Cornell University’s response to hate speech and harassment on campus. Ms. Smeda graduated from the University of Florida summa cum laude with a B.S. in Psychology and a B.A. in Criminology in 2012. She also graduated from Cornell University with an M.A. in Human Development in February 2016.

As the daughter of two Ecuadorian parents, Karen is a native Spanish speaker.

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Mar 18

Building a Winning Human Resources Team

With the college football championship and Super Bowl just behind us, fans are looking forward to next season with optimism for a winning record and possible championship for their team.  During the offseason, teams often address weaknesses as they look for the right formula on defense, offense and special teams that will lead to success.  In order for a human resources game plan to be successful, it’s also important that your defense, offense and special teams be ready for the challenges of today and tomorrow.  As you build your team, here are some suggestions for success:

DEFENSE

Conventional wisdom holds that “defense wins championships.”  Developing a plan for compliance with the employment regulations and laws is essential to establishing a foundation for human resources success.  Here are some defensive steps we recommend to employers:

Conduct an Employment Law Compliance Review – Given the tremendous liability and continued expansion of employment related claims, it makes sense to conduct an employment law compliance review on a regular basis. This can be performed internally or with the assistance of your employment law counsel.  Proactive risk management reduces immediate exposure and represents the best strategy to combat the frequency and cost of employment related litigation

Publish Effective Policies – Use your employee handbook, bulletin boards and other communication programs to effectively communicate your policies covering: (a) equal employment opportunity, (b) anti-harassment and (c) complaint procedure. This can serve as a defense of harassment and other claims.

Pay Employees Fairly at the Time of Separation – Many lawsuits and Department of Labor complaints are generated because of confusion or animosity over payroll issues at the time of termination. In general, resolve pay disputes in favor of the employee.  While it may cost a little more in the short term, you will save time, money and headaches in the long run.

OFFENSE

In the past, many human resources professionals operated in a defensive manner; namely, this involved reacting to perceived threats or identified exposure points.  Now, it is vital for employers to take certain proactive steps to reduce liability.  Consider the following when developing your offensive strategy:

Regular Training Covering EEO and Harassment Based on a series of Supreme Court cases and guidance from the EEOC, employers are afforded a measure of protection by: (1) implementing and communicating harassment and discrimination policies, (2) establishing an effective complaint and investigative process, and (3) training managers and employees regarding the employer’s professional conduct expectations. If an employer takes steps to exercise reasonable care and an employee does not take advantage of the complaint procedure, the employer’s likelihood of prevailing in a discrimination or sexual harassment lawsuit is significantly increased.

Investigate Complaints in a Timely Manner and Document Your ActionsThe findings of the investigation are vitally important.  However, the process of investigating demonstrates the level of seriousness with which such issues are afforded and shows that the employer is meeting its reasonable care obligation.

Employee Attitude Survey – Discrimination and other employment complaints are often rooted in other job-related concerns and problems.  An employee opinion survey gets to the root of the problem and eliminates the need for an employee to take his or her complaint to an outside agency.

Proactive Documentation – Make sure that your human resources files and related documentation accomplish a two-fold purpose. First, it lets an employee know that their performance or conduct is not acceptable. Second, the personnel file becomes the basis from which employment decisions are defended and it’s important to make sure that files accurately reflect the events related to employment.

SPECIAL TEAMS

At times, human resources managers need outside assistance.  Make sure your special teams include working relationships with:

  • Employment Attorney
  • Insurance Carriers (Health, Workers’ Compensation, EPLI, etc.)
  • Network of Peers
  • Local, State and National Association Resources
  • Accountant

By implementing these defensive, offensive and special team recommendations, you’ll be well on the way to building a winning human resources team.

This article is designed to provide general information and is not legal advice or a legal opinion based on any specific facts or circumstances.  Consult your attorney regarding any specific questions you may have.

By:

J. Scott Hudson, Esq.

Zimmerman, Kiser & Sutcliffe, P.A.

shudson@zkslawfirm.com

 

 

 

 

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Nov 28

Background Screening Compliance – Knowing the Basics!

Like most topics in the HR world, there is more than meets the eye when it comes to Background Screening. It is quite a litigious industry and because of this, while conducting background checks is vital for employers, it is equally important to know the compliance regulations around background screening. Employers want to mitigate their risks, at all costs. Conducting background checks is proven to reduce workplace violence, protect against negligent hiring lawsuits, and reduce employee turnover, among many other valid reasons. Below are three key items to consider, and regularly review, with regard to your background screening policy.

Where to begin – Choosing a vendor and getting started:

 The first step in implementing, or when reviewing, your background screening policy, is making sure you have the right partner. Your background screening vendor plays a vital role in this process. Understanding that you have options and having a consultative relationship with your vendor, will ensure you are working together to achieve the policy you, as an employer, see fit for the company. One size does not fit all when it comes to background screening. There are different items to consider when deciding what type of searches you will run:

  • Are you regulated to run certain background checks by the state or federal government?
  • What staff, if any, will be exposed to vulnerable population and or personal/financial information?
  • Are you implementing a Drug Free workplace policy?
  • Are you verifying Education, Employment, License, Driver License…?

There are too many variables to list, which is why working with your vendor is crucial. Ask your vendor what industry standard is. What do other companies in your industry, and of your size, typically do? Compare this with your current policy. Most importantly, know and understand exactly what you are running and how the searches are performed.

Authorization and Disclosure Forms:

The FCRA (Fair Credit Reporting Act) makes an employer’s requirements very clear regarding obtaining Authorization and Disclosure. In short, it is imperative that employers have FCRA counsel review their forms and processes, to ensure full compliance. Many employers, around the country, are being sued for not being in compliance. Some of the most popular class action lawsuits are based on:

  • Release of liability language
  • Not obtaining the needed authorization and disclosure, before procuring the background report
  • Not having a “clear and conspicuous” disclosure, per the FCRA

Review these forms and processes regularly with your counsel, your staff processing background checks, and your vendor. Is your vendor providing you sample forms? If so, great, but please remember that these forms are your responsibility, as the employer, and so they are ultimately your responsibility to make sure they are up to date, compliant, and meet your process.

Adverse Action:

If you, as the employer, are taking adverse action, in part or in whole because of the background check your Consumer Reporting Agency provided you, there are additional steps that must be taken. The adverse action process will happen before making a final decision, this is key. Here are just a few items that are to be included in each notice (this is not a comprehensive list):

Pre-Adverse (First Notice)

  • Explain the intent to take adverse action
  • Provide a copy of the report
  • Provide a copy of the consumer’s FCRA Summary of Rights
  • This is the time for the consumer to dispute and for the employer to review the individual circumstances and assess what the applicant provides

Adverse (Second/Final Notice)

  • Explain that adverse action has now been taken
  • Provide dispute process and information, again
  • Explain the consumers’ rights to another free consumer report copy

The set time between the notices has not been defined for employers. The FTC (Federal Trade Commission) has previously suggested five business days is a reasonable amount of time but, as with everything else we have talked about, this should be reviewed with your counsel and set per your business practices.

While there are many other items to consider and review, this is a good starting point. Remember that your background screening policy should be a living document, regularly reviewed and updated as your business and the industry changes. Ban the Box laws, for example, are being implemented and are changing regularly. Stay in tune with your local and national HR associations, blogs, and networks, to track these changes. Ask your background screening vendor for resources and information to help to stay up to date in this ever-changing field. Most importantly, stay proactive, educate yourself, and never stop asking questions!

 

Nicole Roedel
Executive Director
First Choice Background Screening
nroedel@firstchoicebackground.com

 

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Oct 26

Lessons Learned from Mental Health First Aid Training

When you think of first aid training what comes to mind may be CPR, First Aid, or AED training.  Most of us even have a basic first aid kit in our home or car. HR Palm Beach County recently joined with community partners to offer Mental Health First Aid for HR and Business Professionals. Mental Health First Aid training provides basic knowledge and skills to respond to an individual in distress and covered anxiety disorders, depression, substance use disorder, bipolar disorder, Psychosis and Schizophrenia.

It is estimated that 1 in 5 Americans will experience a diagnosable mental disorder in any given year.  Mental Health First Aid training helps a person assist someone experiencing a mental health crisis, such as contemplating suicide.  The goal is to help support an individual until appropriate professional help arrives.

Key things I learned from attending the training:

  1. Many mental health problems can be resolved or helped by seeking support, restoring emotional balance and employing self-care strategies. (I was able to role play a panic attack and learned how to talk the person thru the process.)
  2. Not every person in psychological distress has a mental disorder.
  3. I am not a doctor and cannot diagnose or replace a therapist
  4. Mental Health First Aid Action Plan ALGEE –
    • Assess for Risk of suicide or harm
    • Listen nonjudgmentally
    • Give reassurance and information
    • Encourage appropriate professional help
    • Encourage self-help and other support strategies
  5. Helpful things to say to someone with depressive symptoms –“I am concerned about you”,“Have you spoken to anyone about this before?”

    “It is hard for me to understand exactly what you are going through, but I can see that it’s distressing for you.”

    “Let’s go and have a cup of tea.”

    In my profession, I have dealt with employees at risk for suicide.  I am now prepared to ask direct questions such as, “Are you having thoughts of suicide?,” and assess if the situation is serious by asking follow-up questions:

1  Have you decided how you would kill yourself?

2  Have you decided when you would do it?

3. Have you taken any steps to secure the things you would need to carry out your plan?

Mental Health First Aid is intended for all people and organizations interested in learning more about mental illness and addiction. After attending the training, Katie Kato, President at The Human Resources Factor, LLC, said, “I do believe that this training provides a more relevant skill for Human Resources professionals than even the standard CPR/First Aid.  While we may not specifically recognize or ‘diagnose’ individuals who may be dealing with various mental health challenges, through our interactions with supervisors, we address the behaviors and conduct of staff who have these issues. Our ability to recognize the ‘bigger’ picture will help us with our professional responsibilities, and will make us more valuable to both these managers and the staff that we serve because this insight should prepare us to respond more empathetically and with more appropriate knowledge.”

  1. Ms. Kato echoed how we all feel when she said, “I feel so proud of our HRPBC Chapter, and our fellow HR professionals for making this training a priority and learning how to better deal with these matters.”The National Council for Behavioral Health operates Mental Health First Aid USA in partnership with the Missouri Department of Mental Health and their vision is for this training to become as common as CPR and First Aid training.  

    Author:

     

    Aimee Mangold, SHRM-SCP, Vice President of Human Resources at Kolter Hospitality, LLC, and President-Elect at HRPBC. Aimee brings over 20 years of professional human resource leadership experience having worked with The Procaccianti Group and Interstate Hotels where she held various roles as Area Director of Human Resources, Regional Director of Human Resources and Regional Trainer. Aimee has been a member Human Resources Association of Palm Beach County since 2006 and has held a variety of volunteer positions including Workforce Readiness chairperson, At-Large Director and is currently President Elect.  She currently holds a SHRM-SCP and SPHR designation.

     

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Aug 03

Trying to Reason with Hurricane Season! Is Your Workplace Prepared?

 Trying to Reason with Hurricane Season! Is Your Workplace Prepared?

It’s that time of year again – hurricane season!  As Floridians, we love the summer, sand, seashores, and the sea.  But, sometimes out beautiful home can get intense and we have to take action.  I have always said hurricanes are the best of all the natural disasters because we get advanced notice – usually a week or maybe two.  Tornados, floods, tsunamis, pandemic outbreaks, or terrorist attacks are not as kind, but we can and must do some planning before disaster strikes.  As employers and HR professionals, you are on notice – disasters do happen and your employees, your community, and your governments expect you to prepare.

Here are just a few tips to consider.  For more detail, I will be presenting this topic during my breakout session at HR Florida this month.  Come join me for the discussion.

  1. Risk Assessment – What Are Your Major Threats?

A disaster plan must consider both man-made and natural disasters; however, each employer needs to evaluate threats to which its workplace is particularly vulnerable.  Risk assessment can range from retaining an engineering study to a simple self-assessment.  The specific industry, size, and scope of your business will determine your risk assessment needs.  Additionally, you need to find out what disasters are most common to the areas in which your business operates.

FEMA’s website provides information regarding the identification of potential risks to your business and the specific type of harm that may result from various forms of terrorist attacks, including: explosions, biological threats, chemical threats, nuclear blasts, and radiological dispersion devices. FEMA’s website also contains information regarding how to handle a bomb threat, how to identify a suspicious package or letter, and how to treat suspicious packages and letters once they are identified.

  1. Major Legal Issues – Safety and Pay

Even in the wake of a disaster, you generally must still comply with applicable employment laws and the failure to do so may subject you to liability.

a.   The Occupational Safety and Health Act (OSHA)

 OSHA standards cannot be ignored in the face of disaster, and OSHA continues to require employers to protect their employees against “recognized hazards” to safety or health which may cause serious injury or death. OSHA’s website (www.osha.gov) has established a page where employers can access more than 20 audio and printed guidelines to specific work practices dangers likely associated with clean-up and recovery, including flooding, electrical, fall protection, personal protective equipment, chain saws, mold, blood borne pathogens and bacterial issues, tree trimming, trenching, and heat exposure.

Employers also need to be aware that “employees do have the right to refuse to do a job if they believe in good faith that they are exposed to imminent danger, and good faith means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.” Imminent danger is defined as a “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” Employees must first approach their employer when they believe that working conditions are unsafe or unhealthy and the employee must generally satisfy four conditions before walking off the job. The four conditions include: 1) asking the employer to eliminate the danger and the employer then refusing to do so; 2) the employee genuinely believing that an imminent danger existed and the employee did not refuse to work for other reasons; 3) a situation where a reasonable person would agree that there is a real danger of death or serious injury; and 4) there is not enough time due to the urgency of the hazard to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

b. Wage Payments

The Fair Labor Standards Act (FLSA) and similar state laws require that employees continue to be paid for all hours worked, even in a time of a disaster. If time records are lost as a result of a disaster, the employer can pay the employee based on the number of hours normally worked or have the employees estimate as best as possible the number of hours worked. Additionally, the employer should also obtain written authorization from the employee allowing them to make corrections if more accurate time records become available. The best way to avoid this type of situation is to store all payroll records off-site.

In the event that your employees are not working after a disaster, you do not have to pay them unless you have a policy providing pay under these types of circumstances. For exempt employees, an employer must pay those employees their entire salary if they work any part of the workweek. No compensation is due, however, if the exempt employee does not work at all during the workweek.

  1. Training and Testing Your Disaster Plan 

The best way to ensure that your disaster plan is going to be effective is through repeated training and testing with your employees. There must be regular communication with employees before, during, and after an incident through the use of newsletters, intranets, staff meetings, and other internal communication tools to communicate emergency plans and procedures. Additionally, drills and exercises should be preceded by training seminars or workshops where participants are trained in their emergency responsibilities. After each training session, the disaster plan should be re-evaluated and procedures should be refined based on lessons learned.

ASIS International (ASIS) is an international organization that promotes the educational development of security professionals, and its website (www.asisonline.org) has a Disaster Preparation Guide that includes an outline for training general employees and management in disaster response. General employee training should assure that all employees automatically react to warnings and know any duties they are expected to perform during an emergency. Since management will play a leadership role during an emergency, it is important they receive detailed training, which should include how the business will coordinate with the government and other resources.

 

 

Phillip B. Russell
Ogletree Deakins
@phillipbrussell
https://www.linkedin.com/in/phillipbrussell/
https://www.ogletree.com/people/phillip-b-russell

 

 

 

 

 

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