New on XpertHR This Week - 9/17/2012

This week, XpertHR's newly added resources cover topics such as managing employee leaves under the federal Family and Medical Leave Act, addressing poor work performance, handling informal complaints and resulting internal investigations, applicant screening and more.

Deadline for Public Comments to EEOC's Strategic Enforcement Plan is September 18, 2012

The Equal Employment Opportunity Commission released the latest draft of its Strategic Enforcement Plan for Fiscal Years 2012-2016. The agency seeks public comments on the draft, which must be submitted by 5:00 pm ET on September 18, 2012.

Newly Added Resource:

• EEOC Updates Strategic Enforcement Plan, Asks for Input - News.

Managing Employee Leaves Gets Even Harder and Employees Get Wiser

Managing employee leaves under the federal Family and Medical Leave Act (FMLA), and its state equivalents, has always been a difficult task. With new state leave rights constantly popping up, HR professionals find themselves co-managing the FMLA with more state-required leaves than ever before.

In addition, the US Department of Labor is undertaking initiatives to notify the workforce of its FMLA rights, including holding free webcasts. But, that's not all. A recent Third Circuit case has held that supervisors may be individually liable for FMLA violations. An increasingly knowledgeable workforce, and the augmented threat of individual liability, places a greater strain on employers to ramp up FMLA compliance efforts.

Newly Added Resources:

• How to Handle Employee's Request for Leave as an Accommodation;
• Steps to Prevent FMLA Fraud and Abuse - Checklist;
• Key Employee Notification Under the FMLA Letter;
• Letter Notifying of Exhaustion of FMLA Leave - Policies and Documents;
• Letter Advising Employee of Potential Termination of Health Coverage Due to Non-Payment During FMLA Leave;
• Letter to Key Employee Seeking Reinstatement After FMLA Leave;
• Request for Family and Medical Leave Form;
• Letter Reminding Employee of Return to Work at End of FMLA Leave (One Week to Employee's FMLA Exhaustion);
• Key Employee Designation Under the FMLA and Notice of Substantial and Grievous Economic Injury to Employer; and
• Must an employer continue to provide fringe benefits to employees who are out on sick leave, disability leave or workers' compensation leave? - FAQ.

Informal Complaints and Confidential Investigations

Identifying whether a complaint is something HR should act upon is not always clear. An employee may walk into the HR department and say, "I'd like to file a complaint". However, it is just as likely that an employee will walk into his or her supervisor's office and casually state grievances over morning coffee. Is the latter just idle workplace chatter or is it a complaint that should be escalated to, and investigated by, HR?

In general, when there is a doubt, employers should take a conservative approach and treat the discussion as a complaint. An employer's failure to act on a complaint - even an informal one - may lead to liability. Therefore, supervisors should be trained to escalate these incidents to HR and HR should obtain further information and conduct an internal investigation, if necessary. With respect to that investigation, as a result of a recent National Labor Relations Board decision, HR should refrain from advising employees to keep it confidential.

Newly Added Resources:

• NLRB Rules on Prohibiting Discussion of Internal Investigations - News; and
• 7th Circuit Finds Informal Complaint Is Basis for ERISA Retaliation Claim - Law Report.

Having the Dreaded Talk: Addressing Poor Work Performance

Addressing poor work performance is, perhaps, a supervisor's most difficult duty. In fact, the ability to do so is often the great divider between effective and ineffective supervisors. An effective supervisor addresses poor work performance and takes appropriate measures to remedy it, including taking disciplinary action. An ineffective supervisor turns a blind eye, allows the issue to perseverate indefinitely and, ultimately, the supervisor's team is weaker for it.

Newly Added Resource:

• Address Poor Performance - Task.

Legal Insight Into the Affordable Care Act and Transgender Issues

For more complex or evolving issues, XpertHR offers subscribers a Legal Insight tool - a focused in-depth analysis of key workplace issues.

The Affordable Care Act (ACA) is approximately 2400 pages long. XpertHR uses the Legal Insight tool to reduce complex legislation such as the ACA, into a short, plain-English document advising HR professionals what they need to know to do their jobs - no more and no less. In addition to complex legislation, XpertHR's Legal Insight tool can help employers institute best practices for dealing with evolving workplace topics, such as gender identity, gender expression and transgender issues. This tool supplements, and provides context for, other XpertHR tools covering the same issue.

Newly Added Resources:

• What Employers Should Know About the Affordable Care Act (ACA) - Legal Insight;
• Gender Identity, Gender Expression and Transgender Status in the Workplace - Legal Insight; and
• Gender Stereotyping Sexual Harassment Claim May be Brought Regardless of Plaintiff's Sexual Orientation - Law Report.

Applicant Screening and Verification

With increased limitations on employers' use of applicants' criminal and credit histories, the background screening process seems to be shrinking. However, employers should not underestimate its importance. Failure to properly screen applicants can lead to costly turnover, legal liabilities and regulatory fines and penalties.

Newly Added Resources:

• How to Deal with Failed Employee Name/Social Security Number Verifications;
• How to Verify SSNs; and
• Marijuana Laws by State.