Perspectives

Many employers may be aware of the Americans with Disabilities Act (“ADA”), but may not understand what their specific responsibilities are when it comes to the ADA. For starters, the ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities, thus interfering with the employee’s ability to perform their job. Major life activities include walking, sitting, standing, lifting, speaking, seeing hearing, learning, etc. This also includes major bodily functions such as circulatory, endocrine, hematic, cellular, and reproduction, among others.

Whether an employee is injured at work or while engaging in activities outside of work, or is navigating a mental or emotional hardship, the employee may fall under this ADA definition of disability, even if temporarily. If an employee requests an accommodation, employers are then responsible for engaging in the interactive process (that’s legalese for an open and honest dialogue) with the employee to find a suitable accommodation to keep them working. The goal of the ADA is to keep employees productive in their roles without undue hardship on the employer. You achieve this by clear communication and following the interactive process which will help both you the employer, and the employee in question, find a reasonable accommodation.

After establishing there is a need, the next step in the interactive process is an official accommodation discussion, outlining what tasks or light duty expectations the employer has for the employee. This accommodation should be aligned with their doctors’ recommendations, to the extent possible.

We have created a checklist to get you on the path for a successful interactive process. We have additional resources that can help you navigate those steps if, or when, this situation arises for your company.

ADA Reasonable Accommodation Checklist:

When an employer has information that a disability may be interfering with an employee’s ability to perform their job, the following steps may be taken:

Identify the need for accommodation.

Unless there is an observable basis or other objective evidence that the employee has an impairment that is affecting job performance, do not inquire about the need for an accommodation.

• Ask the employee if there is any way the employer can assist the employee in the performance of job tasks. No reference to the Americans with Disabilities Act (ADA) is necessary at this point.
• If the employee declines the need for assistance, no further action is necessary. The employee may be held to the same performance and conduct standards as all other employees.

Engage in the Interactive Process.

If the employee discloses the need for assistance due to a disability, continue with the following steps:

• Determine whether there is a medical documentation or other reliable, objective information to conclude that the employee has a physical or mental impairment that substantially limits a major life activity.
• Review the employee’s job description and determine the essential functions of the job. Identify nonessential job tasks that may be reassigned to other employees for purposes of accommodation.
• Discuss possible accommodations with the employee, their health care providers, and supervisors who have knowledge of the worksite and the job. Engage other professionals, such as the employee assistance program (EAP) counselors or a vocational or rehabilitation counselor as appropriate.
• Determine whether the employee’s preferred accommodation creates an undue hardship for the employer. If so, suggest and discuss alternative accommodations.

Obtain Medical Information (if necessary).

When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about their disability and functional limitations.

• If documentation from a health care provider is necessary, have the employee sign a medical release form.
• Provide the employee with an ADA medical accommodation certification form to be completed by their health care provider.
• Provide a copy of the job description to the health care provider and have the provider indicate what major life activity or activities are limited.

Identify the Existence of a Direct Threat.

Direct threat under the ADA is “a significant risk of substantial harm.” An assessment of direct threat should be based on valid medical analyses and/or other objective evidence, not on speculation. This is a very narrow exception that may warrant denial of an accommodation and/or termination of employment.

• Determine whether the employee is a direct threat to themselves or to others in the performance of the job tasks.
• Document the direct threat by identifying the risk caused by the limitation, the potential harm that could result, and the medical or observable facts on which the risk is based.

Retain Documentation

• Identify and document the reasonable accommodation given, the reason no accommodation was needed or why the accommodation request was denied.
• Keep all medical information in a file that is separate from the employee’s personnel file.

Additional resources to assist employers in understanding their responsibilities under the ADA:

Job Accommodation Network (JAN)

www.askJAN.org    1-800-526-7234 (voice)

*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services. JAN is a free, confidential service from the U.S. Department of Labor’s Office of Disability Employment Policy that provides individualized accommodation solutions and technical assistance on the ADA. Among the areas that JAN can address are:

• Accommodation options and low-cost solutions
• Hiring, retaining and promoting qualified employees with disabilities
• Employer responsibilities under the ADA
• Addressing accessibility issues, including accessible technology

Equal Employment Opportunity Commission (EEOC)

www.eeoc.gov        1-800-669-4000 (voice)

*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

The EEOC enforces the ADA’s employment provisions. The section of its website titled “Disability Discrimination” provides access to numerous publications, including several specifically designed to answer employer questions and concerns.

U.S. Department of Justice (DOJ) ADA Homepage

www.ada.gov   1-800-514-0301 (voice):

If you are deaf, hard of hearing, or have a speech disability please dial 7-1-1 to access telecommunications relay services.

The ADA homepage includes many excellent resources for employers. The “ADA Business Connection” section of the site includes business briefs and tax incentive information.

Americans with Disabilities Act National Network

www.adata.org     1-800-949-4232 (voice)

The Americans with Disabilities Act National Network, sponsored by the U.S. Department of Education’s National Institute on Disability, Independent Living, and Rehabilitation Research, consists of 10 regional centers and an ADA Knowledge Translation Center which provide ADA information, training and technical assistance across the nation.

Failing to make reasonable accommodations for your employees can leave you open to unnecessary risk. Consulting with the Employment Law team at Wagner, Falconer & Judd can set you, and your team, up for success.

Building a successful team is one of the most critical aspects of running a business. Hiring the right people who are the perfect fit for your organization’s culture and goals can lead to increased productivity, innovation, and success. On the other hand, hiring the wrong people can result in costly mistakes, decreased morale, and a negative impact on your bottom line. That’s why it’s essential to adopt the strategy of hiring slow and firing fast.

Hiring slow means taking your time to carefully select and onboard new employees, while firing fast means swiftly letting go of employees who are not meeting expectations or not aligned with your company’s values. In this blog, we will explore the art of hiring slow and firing fast, and why it’s crucial for building a successful team.

The Importance of Hiring Slow

Hiring slow doesn’t mean delaying the hiring process unnecessarily. Instead, it’s about being intentional and thorough in your hiring process to ensure you make the best hiring decisions. Here are some key reasons why hiring slow is crucial:

1. Cultural fit: Your team’s culture is the backbone of your organization. Hiring employees who align with your company’s values and culture can lead to better teamwork, higher employee engagement, and increased job satisfaction. Take the time to assess not only an applicant’s qualifications but also their fit with your company culture during the hiring process.
2. Skillset and experience: Hiring slow allows you to thoroughly evaluate an applicant’s skillset and experience. You want to make sure that the candidate possesses the right skills and experience to perform the job effectively. Rushing through the hiring process may result in hiring someone who lacks the necessary qualifications, leading to poor performance and potential setbacks for your team.
3. Long-term commitment: When you bring someone on board, you want them to be committed to your organization for the long haul. Hiring slow helps you assess a candidate’s long-term commitment to your company. Look for candidates who are genuinely interested in your organization and its vision, and who show potential for growth and advancement within the company.

The Benefits of Firing Fast

Firing fast means taking swift action when an employee is not meeting expectations or is not aligned with your company’s values. Here are some reasons why firing fast can be beneficial for your team:

1. Maintaining productivity: When an employee is not performing up to par, it can impact the productivity and morale of the entire team. Allowing an underperforming employee to stay on the team for too long can drag down the overall performance and motivation of the team. Firing fast helps you address performance issues promptly and maintain a high level of productivity.
2. Protecting company culture: Company culture is fragile, and one toxic employee can disrupt the entire team dynamic. If an employee consistently exhibits behavior that goes against your company’s values or culture, it’s crucial to take action swiftly to protect your team and maintain a healthy work environment.
3. Saving resources: Keeping an underperforming employee on board can be costly in terms of time, money, and resources. Firing fast helps you avoid wasting valuable resources on an employee who is not contributing to your team’s success. It also opens up opportunities to hire a more suitable replacement who can add value to your organization.

Best Practices for Hiring Slow and Firing Fast

Implementing the strategy of hiring slow and firing fast requires careful planning and execution. Here are some best practices to keep in mind:

1. Clearly define your hiring criteria: Before you start the hiring process, clearly define the qualifications, skills, and experience you’re looking for in a candidate. This will help you assess applicants more effectively and make informed decisions. Create a job description that clearly outlines the expectations and requirements for the role.
2. Conduct thorough interviews: During the interview process, ask probing questions to assess a candidate’s skills, experience, and cultural fit. Use behavioral-based interview techniques to gain insights into how candidates have handled similar situations in the past. Also, consider conducting multiple rounds of interviews to ensure you have a well-rounded understanding of the candidate’s capabilities.
3. Check references: Take the time to check the candidate’s references to validate their skills, experience, and cultural fit. Contact their previous employers or colleagues to gain insights into their performance, work ethic, and team dynamics.
4. Onboard new employees effectively: Once you’ve made a hiring decision, invest in a comprehensive onboarding process. Provide new employees with the necessary tools, resources, and training to set them up for success. Clearly communicate your expectations, company culture, and values from the start to ensure a smooth transition into their role.
5. Set performance expectations: Clearly communicate performance expectations to your employees from the beginning. Set measurable goals and objectives and regularly review and provide feedback on their performance. If an employee is not meeting expectations, address the issues early on and provide support and guidance to help them improve.
6. Act swiftly when performance issues arise: If an employee is consistently underperforming or not meeting expectations, address the issues promptly. Have open and honest conversations with the employee to understand the reasons behind the performance issues and provide coaching and support to help them improve. However, if the employee does not show significant improvement despite the support provided, be prepared to take decisive action and part ways amicably.
7. Communicate clearly and respectfully: When it comes to firing fast, it’s important to communicate clearly and respectfully with the employee. Clearly articulate the reasons for the decision and provide feedback on their performance. Be professional, empathetic, and supportive during the process.
8. Learn from mistakes: Not every hiring decision will be perfect, and sometimes you may need to let employees go. It’s important to learn from any mistakes and use them as an opportunity to improve your hiring process. Assess what went wrong, identify any red flags or gaps in your hiring process, and make necessary adjustments to avoid similar situations in the future.

In conclusion, adopting the strategy of hiring slow and firing fast can be a valuable approach to building a successful team. By taking the time to thoroughly assess candidates, onboard them effectively, and set clear performance expectations, you can increase the likelihood of hiring the right employees who align with your company’s culture and values. At the same time, addressing performance issues promptly and parting ways amicably, when necessary, can help maintain team productivity, protect your company culture, and save valuable resources. Remember to always communicate clearly and respectfully throughout the process and learn from any mistakes to continuously improve your hiring practices.

If a non-exempt employee must travel for work, how much of that travel time is compensable?

Since states do not have laws regarding non-exempt employee travel, this blog covers the federal Fair Labor Standards Act (ACT) and the Department of Labor’s regulations.

When travel requires an overnight stay, any time spent traveling as a passenger that falls within the employee’s “normal work hours” is to be paid, regardless of what day of the week the travel takes place. Therefore, the time spent waiting at the terminal until departure, through the subsequent arrival at the destination, needs to be compensated, when it falls during those normal work hours. However, similar to when an employee is at home, the time spent traveling from home to an airport or train station is considered commute time and is not treated as hours worked, thus not compensable.

For example, if your employee normally works Monday through Friday, 8:00 a.m. to 5:00 p.m., and they are required to travel by plane on a Sunday for business in another state, their travel time on Sunday between 8:00 a.m. and 5:00 p.m., is compensable. Therefore, if the employee arrives at the airport on Sunday at 3:00 p.m. and at their destination at 8:00 p.m., the employer is required to pay only form 3:00 p.m. to 5:00 p.m., the hours that correspond with their normally scheduled work hours. Alternatively, if the employee drives themselves or other (at the direction of the employer) rather than traveling as a passenger, all the time spent driving is payable work time, regardless of the normal work hours.

However-one caveat to those “normal work hours” is that an employee must be paid for any time they are performing work. This includes time spent working during travel as a passenger that would otherwise fall outside normal hours. For instance, if that employee from the above example works on a presentation during their flight until 6:30 p.m., the employer would need to pay them from 3:00 p.m. (arrival at airport) to 6:30 p.m. (turning off computer for the remainder of the flight).

A good practice is to require any traveling hourly employee to record all hours worked and the corresponding times throughout the duration of their trip. The employee needs to be paid for all hours worked even if outside of the normal hours.

Another factor to consider are the costs your hourly employees will incur during business travel-such as food and beverages, hotels, transportation, or incidentals. If there is not a company issued credit card the employee can use, another option is providing a stipend to your employees. Stipends are commonly used to either pre-pay, or pre-approve, the employer designated costs per day during business travel. Pre-paying the employee in this way helps reduce the daily financial burden of a business trip up-front when the employee doesn’t have a company issued credit card. Or, requiring pre-approved costs/rates allows for budgeting control if the employee is booking their own hotels, etc. For example, here is a link to per diem rates in each state that apply to traveling government employees. Many private business follow these rates as well because they are standardized by the cost of each location. The website contains current rates in the continental United State for any reference you might need.

Generally, offering either the stipend or company credit card can remove the reimbursement waiting period for the travel expenses afterwards, which is a common procedure to benefit the employee. Companies are not required to pay travel stipends to employees like they are require to reimburse business travel expenses in general, so the reimbursement process may look different for the individual companies.

The Fair Labor Standards Act (FLSA) is a federal law in the United States that sets minimum wage, overtime pay, recordkeeping, and youth employment standards for employees in both the private and public sectors. The FLSA also establishes exemptions from these standards for certain employees who meet specific criteria.

One of the most common exemptions under the FLSA is the “white-collar” exemption, which applies to certain executive, administrative, and professional employees who earn above a certain salary threshold. The salary level threshold for this exemption is currently set at $684 per week or $35,568 per year, meaning that employees who earn less than that amount are generally entitled to overtime pay under the FLSA.

In 2019, the Department of Labor (DOL) announced a new final rule that would have increased the salary level threshold for the white-collar exemption to $913 per week or $47,476 per year. This rule was set to take effect on January 1, 2020, but was later blocked by a federal court and subsequently withdrawn by the DOL.

Now, the House and Senate have both introduced the Restoring Overtime Pay Act which, if signed into law, would immediately increase the salary threshold to $865 per week or $45,000 per year.  After the initial bump, the salary threshold would automatically increase by $10,000 in each subsequent year until the threshold reaches $75,000 in 2026.  Starting in 2027, the salary threshold will increase to an annualized amount equal to the rate of the 55th percentile of weekly earnings of full-time salaried workers nationally, which will be determined by the Bureau of Labor Statistics using data from the second quarter of 2026.

The stated purpose of the act is to strengthen overtime protections by increasing the number of workers who would be eligible for overtime pay.  For companies that employ exempt workers, we recommend keeping your finger on the pulse of these laws as you may need to raise salary thresholds in order to continue classifying these employees as exempt.  Stay tuned. 

With the recent closure of Silicon Valley Bank, employers may feel the pressure of liquidity issues, which in turn could impact their ability to pay employees on time or operate their compensation/benefits programs.

Three key considerations to focus on when evaluating your company’s internal finances are payroll, furlough, and benefits. These will effect your employees’ day-to-day lives, and eat up most of your HR staff’s time.

Payroll/Employee Communications:

Communicate immediately with employees regarding potential delays in payroll timing and provide prompt updates on changes. If you’re switching payroll to another financial institution, ensure compliance with existing wage rules that are designed to prevent changes to employee’s elected methods of payment without their consent. To the extent the employer cannot timely make payroll, consider furloughing or terminating employees.

Benefit Plans:

Review health and welfare benefit plans, contracts and arrangements to determine whether missed or late payments by the employer to third-party providers may cause a lapse in benefits/insurance coverage for employees (or otherwise impact coverage).

Fair Labor Standards Act:

Many employers impacted by the SVB closure are faced with difficulties in making payroll. Most employers are covered by the Fair Labor Standards Act (“FLSA”), which governs federal wage and hour standards. Covered employers have several obligations under the FLSA, including ensuring nonexempt employees are paid (a) minimum wage for all hours worked and (b) overtime for all hours worked in excess of 40 hours in any workweek. There is no explicit deadline in the FLSA itself with respect to the payment of wages. Nevertheless, the U.S. Department of Labor’s (the “DOL”) position is that FLSA-mandated sums earned for a workweek generally must be paid on the regular payday for the pay period in which the workweek ends. Currently there is no available waiver, or exemption, for noncompliance resulting from bank closures.

An employer that repeatedly or willfully violates the minimum wage or overtime pay requirements of FLSA is subject to a civil penalty of up to $1,100 for each violation. For any violation (including isolated or inadvertent violations), the employer is liable to the employee for the amount of unpaid wages and overtime pay, if any, plus an equal additional amount paid as liquidated damages. There is no requirement that the affected employee show harm beyond the late payment.

In addition to potential penalties for compliance failures under FLSA, employers may also face penalties in connection with failure to timely remit the employer portion of taxes, which includes federal income tax, Social Security and Medicare taxes and Federal Unemployment Tax. There are penalties for untimely, inaccurate, or improperly paid employment taxes, imposed based on the number of days the taxes are overdue.

State Wage Laws:

In addition to complying with wage payment obligations under FLSA, employers must also comply with applicable state wage laws or risk additional fines and penalties. Unlike FLSA, many states impose specific intervals for paying employees (e.g., weekly, bi-weekly, etc.), which may vary depending on an employee’s role or function or the industry in which they work. Penalties for failing to comply with state wage laws vary by state and can include liquidated damages and attorney’s fees.

Furloughing Employees:

In connection with similar liquidity crises, employers have considered employee furloughs as an alternative to layoffs until they can resolve their liquidity issues. Furloughs generally refer to a mandatory, but temporary, cessation from work without pay, with the expectation that the impacted workforce would return to work with the employer in the future.

Health Benefits and COBRA:

Employers that sponsor group health plans should consider whether a furlough would allow employees to continue to participate in employer-provided health benefit plans as “active” participants without requiring participants to elect benefits under COBRA. The determination will depend on the terms of the applicable plan and the underlying insurance policies maintained by their plan carrier.

Qualified Defined Contribution Retirement Plans:

A furloughed employee will generally be considered an active participant in the retirement plan and will not be considered to have experienced a “severance of employment.” Therefore, the employee would not qualify to take a termination distribution from the retirement plan. Further, furloughed employees would not qualify to take a termination distribution from the retirement plan termination assessment. Furloughed employees who are considered active participants may, subject to applicable plan terms, receive plan loans (or have existing loans remain outstanding) or in-service distributions.

Other Benefits:

Employers should also carefully review and assess the impact of furloughs on company participation in, and elections made under other benefit plans, including flexible spending accounts. A furlough may be considered a qualifying event triggering an employee’s ability to make mid-year election changes under a flexible spending account.

Labor Law and Contract Considerations:

When determining which employees to furlough, it is important for employers to use objectively defined and non-discriminatory categories of employees, to mitigate arguments of disparate impact and retaliation.

Further, employers with 100 or more employees need to be aware that under the federal Worker Adjustment and Retraining Notification Act of 1988 (“WARN Act”), employers are required to provide 60 days advance written notice to terminated employees in the event of a “plant closing” or “mass layoff.”

Under the federal WARN act, notice obligations are not triggered if employees will be furloughed for fewer than six months. However, a furlough that exceeds six months or a reduction of hours by 50% for six months or more will constitute an “employment loss” and trigger WARN’s notice obligations.

Several states that have adopted “mini-WARN” laws have similar exceptions for unforeseeable business circumstances to the WARN Act, such as New York. Employers should review the applicable local, state, and federal notice requirements before furloughing any employees.

The expense of missing payroll, or letting your employee’s benefits lapse could be detrimental to your business, especially during times of economic distress. The attorneys at Wagner, Falconer and Judd have decades worth of experience navigating the ever-changing legal obligations employers face, and are only a phone call away to help you ensure your employees, and your bottom line, are protected. Visit our Support Services page to schedule a consultation with one of our attorneys.

Minnesota lawmakers have advanced a bill that would create a new state-backed family and medical leave program, which guarantees paid time off for the roughly 75% of MN workers that currently don’t already have access to the benefit. This new law aims to take some of the cost and risk associated with employee leave off of employers, but what does that mean for your business?

What would the new policy entail?

The law proposes providing up to 12 weeks of partial wage replacement for medical leave (including pregnancy). The law also proposes providing up to 12 weeks partial wage replacement for family leave, including for a new baby or seriously ill relative.

What would the benefits be?

The law would replace wages on a progressive scale at 90%-55% of an employer’s salary (66% on average), while protecting job healthcare benefits.

Who would foot the bill?

The cost for providing leave would be handled by creating a large statewide risk pool to attempt to equally share costs between employers and employees, with both contributing 0.31% on employee earnings.

Who is going to do the paperwork?

The Minnesota Department of Employment and Economic Development would handle payments and administration on behalf of employers.

Who will be entitled to this benefit?

All working Minnesotans, including small business owners and those who are self-employed would be eligible for leave. The leave would be job-protected, including a right to be reinstated after the completion of leave, and retaliation is prohibited.

Key Components of MN’s proposed family leave policy:

This proposed policy has NOT been passed by Minnesota law makers yet, so there is no need to make any changes to your employee policies at this time. The information here is not legal advice, and you should not take, or refrain from taking action based on information here. If you have additional questions about this policy, or would like to work with the WFJ Employment Law and Human Resources team to develop your internal policy now-visit our Support Services page to request a consultation, or give us a call!

What is a home seller disclosure law?

A home seller disclosure las is a law that requires home sellers to disclose or reveal known defects regarding the property that is being sold. Every state has their own unique disclosure laws and timelines. Many states also require a specific disclosure form, which should be provided by your Realtor.

What defects should be disclosed?

Material defects, anything that has an impact on the home’s value or safety. Water or flood damage (basement), leaking roof or ceiling, foundation cracks or issues, structural issues, insect infestations, mice infestations, toxic conditions such as asbestos, mold, lead paint, mechanical issues with the HVAC system or otherwise, electrical issues, deaths that occurred on the property in the recent few years, zoning issues or proposed changes to zoning, property line disputes-and depending on the state, naturally hazardous conditions such as location in a flood zone or near an earthquake fault line, tree roots impeding the plumbing lines, etc. The seller has a duty to report all defects they are aware of. If you can, paying for a detailed home inspection may help spot latent defects (defects not visible and not always detected by a general home inspection) and help you provide a comprehensive disclosure.

Does an issue have to be disclosed even if it was fixed by the homeowner?

Yes-disclose it in case the issue reappears for the buyer. Avoid a misrepresentation, negligence or fraud claim. Sometimes home issues that are repaired/fixed are perpetual problems. When in doubt, disclose.

What are your legal options if a problem wasn’t disclosed before you bought the home?

The buyer may have a claim against a seller when it can be proven that the seller knew about the defect and intentionally failed to disclose it. Typically this must be something that existed prior to the buyer taking possession of the home, a defect that is not obvious or visible to the buyer, and there is monetary damage resulting from the defect (buyer has out of pocket costs to fix or repair the issue.) The value of the claim is typically the cost to repair the defect. In some cases, there may be an attorney’s fees provision in the purchase contract.

What can a buyer do to make sure they aren’t buying a home with issues?

Pay for a thorough home inspection by a qualified professional that comes recommended to spot/reveal any issues. Read the entire disclosure form provided regarding the property, follow up with questions to the seller if you have any. Buying a home is a large investment, and you should take the time to understand what you are buying, and the contract you are signing-it is worth hiring a competent realtor or attorney to review the documents regarding the sale. Homeowner disputes can be lengthy and costly, so if you notice any red flags regarding the property, purchase agreement or disclosure, ask your realtor to ask the seller additional questions, and ask for them in writing.