Head Harvester Steve Cesare is our point person to help companies improve their human resources programs.  If you have any human resources questions for Steve send him an email or call him on his cell phone at 760-685-3800.

Harvester Steve’s HR series, “The Top 10 Most Serious Human Resources Mistakes That Companies Make” appeared in Lawn & Landscape magazine. The series now appears in podcast form for the on-the-go landscape contractor.

Click Podcast #29 in the orange side bar to the right — >
as you follow the outline below

A few handy notes appear below to assist in the process.

Wrongful termination typically occurs when a worker is fired for reasons that are discriminatory, unlawful or inconsistent with company procedures.

Key issues concerning wrongful termination that landscapers should know about

Wrongful termination claims are usually based on one of three points:

• First, the termination must have been without “cause” and the employee had an express employment contract or an “implied” contract based on the circumstances of hiring.
• Second, wrongful termination can occur whenever an employee is fired due to illegal discrimination (e.g., race, gender, sexual preference, age).
• Third, wrongful termination can occur when a termination contradicts “public policy.”
  • For example, wrongful termination would be evident if an employee is terminated for:  identifying an illegal company action (i.e., retaliating against a whistle blower), refusing to perform an illegal or unsafe act, or filing a workers’ compensation claim.

What are some of the best practices throughout the landscape industry that help landscapers minimize the likelihood of committing wrongful termination.

• First, all Best in Class companies have a strong “at-will” policy, positioned in the five proper locations in their employee handbooks, with a signed acknowledgment form from every employee.
• Second, Best in Class employers have ample, convincing, and accurate documentation that supports terminating an employee legally, capable of withstanding wrongful termination claims.
• Third, Best in Class organizations have effective performance management programs (e.g., job descriptions, performance evaluation, action plan) that address individual performance issues.
• And fourth, Best in Class companies, don’t fire employees quickly; they follow a consistent and evidence-based process.

If you have any questions about Wrongful Termination or any human resources related question send an email to Steve

In our next Grow Show podcast,  Harvester Steve will share the Fifth Most Serious Human Resources Mistake Companies Make when he shares some valuable insight about Workers’ Compensation.

Many landscapers severely underestimate the scope, complexity, and financial impact of employee leaves of absence. Depending upon the size of the landscaping company and the state(s) in which it conducts business, there could be 15-20 different types of employee leaves of absence that must be communicated, documented, and managed to remain legally compliant. Failure to maintain compliance can produce significant legal costs to the company, and in several cases, financial costs can even be applied against the employer’s personal assets.

Case in point, a recent survey showed that the average legal fees for an employer to defend itself against a single violation of the Family and Medical Leave Act (i.e., FMLA) approached $78,000. That cost does not include financial penalties associated with lost wages, benefit reimbursement, or emotional distress.

To help landscapers reduce financial risk to their companies and themselves, this article provides a description of employee leaves of absence, an overview of the key issues related to them, and some best practices from leaders in our industry.

LEAVES OF ABSENCE
There are three categories of leaves of absence:
1) federal (e.g., FMLA, Uniform Services Employment and Reemployment Rights Act, Federal Jury Duty),
2) state (e.g., New York Military Spouse Leave Act, Tennessee Maternity Leave Law, Illinois Blood Donation Leave), and
3) employer discretion (e.g., vacation, sick leave, personal time off).

With those categories in mind, it is critical for a landscape company to identify all leaves of absence that impact its business operation, specify precise compliance routines for each type of leave, and document the exact steps the company takes every time an employee uses a leave of absence. The lack of detail in tracking all leaves of absence, as well as the manner in which multiple leaves of absence overlap (e.g., FMLA and workers’ compensation), can lead to costly financial penalties.

Here is a list of broadly-defined common leaves of absence, paid as well as unpaid, that all landscapers should consider:

• Vacation,
• Sick leave,
• FMLA,
• State-specific medical and/or family leave (e.g., California Family Rights Act, Arkansas Organ and Bone Marrow Donor Act 2235, Rhode Island Parental and Family Leave Act),
• Federal and state pregnancy leave,
• State military leave,
• Workers’ compensation,
• Disability and rehabilitation,
• Uniform Services Employment and Reemployment Rights Act (USERRA),
• Federal and state jury duty,
• Witness duty,
• Domestic violence and sexual assault,
• Serious crime victims,
• Bereavement leave,
• School activities,
• Time off to vote,
• Voluntary firefighters and police,
• Literacy education,
• Drug/alcohol rehabilitation,
• Civil air patrol,
• Paid family leave,
• Personal time off,
• Employee birthday, and
• Religious observance.

Beyond the large number of leave programs that must be managed, this issue is further complicated by state and federal laws that address similar functions (e.g., medical, pregnancy, military) yet have very different legal requirements that must be upheld. Thus, it is vital for landscapers to thoroughly review BOTH federal and state leave of absence laws.

It is strongly recommended that landscape companies evaluate each legally-required leave of absence on the following criteria to reduce potential violations and financial costs:

• Legal Requirements: Specify whether the leave is mandated by federal and/or state government, clarify the minimum size of the organization that must comply, identify the reasons an employee can take the leave, and determine if the particular leave can run concurrently with other leaves of absence (e.g., FMLA and workers’ compensation).
• Compensation/Benefits: Determine if the employee will be paid or not paid and/or continue to receive benefits (e.g., medical, vacation accrual, seniority) while on leave of absence.
• Eligibility: Identify the standards associated with those employees capable of receiving the leave of absence (e.g., number of hours worked in a year, tenure, full/part-time employment status).
• Duration: Clarify the exact length of time that each leave of absence grants to an employee and how that time can be taken (e.g., individual hours, eight hour increments, 40 hours per year).
• Guaranteed Return to Work: Specify whether the employee has a guaranteed return to work to an “equivalent,” “same,” or “comparable” position or job assignment, once the leave of absence has been completed.
• Employer Verification: Determine if the employer can demand paperwork (e.g., medical provider, jury commissioner, school teacher) to verify the employee participated in the leave of absence.
• Penalties: List the full range of possible penalties, costs, and terms related to non-compliance.

PENALTIES
The penalties related to leaves of absence violations are usually related to one of three employer errors: negligence, improper administration, and retaliation. Negligence is when that the employer does not offer, communicate, or approve the available leaves of absence as defined by law. For example, this would be evident if an employee was injured on the job and the employer did not inform the employee of his/her rights to workers’ compensation or state disability support.

Improper administration is evident in those situations where the employer does not abide by the legal procedures outlined by the particular leave of absence program. Examples of improper administration include: not using correct administrative forms, violating employee privacy rights (e.g., HIPAA and FMLA), and not continuing medical benefits while an employee is on a leave of absence. Improper administration also represents evidence supporting the more expensive claim of employee discrimination.

A growing legal concern is employer retaliation against employees who take leaves of absence. Many recent court decisions have ruled in favor of employees based on employer comments (e.g., “Aren’t you back from medical leave yet?” “What am I going to do to cover your work while you are out on workers’ compensation?”), or documenting the nature, detail, or occurrence of a leave of absence in an employee’s annual job performance review (e.g., “John’s performance this year was severely hindered due to the fact that he missed 5 weeks of work while on leave of absence.”).

Penalties are determined by the specific leave of absence and the manner in which it was violated. Likely penalties include the following: employee reinstatement, back pay, reimbursement for lost benefits, attorneys’ fees, injunctive relief, state/federal court costs, civil lawsuit, and financial fines. Moreover, employers who willfully refuse to rehire, promote, or otherwise restore an employee as required by a grievance procedure or hearing, may be found guilty of a misdemeanor. Clearly, any of these penalties, as well as a combination of multiple penalties, is potentially severe, costly, and ruinous to a landscaping company.

BEST IN CLASS PRACTICES
In an effort to reduce the company’s financial risk, in managing leaves of absence, here are some Best in Class Practices utilized by top landscapers from across the country.

• Training
­ Best in Class companies train all appropriate staff (e.g., administrative, human resources, supervisors) on how to identify, discuss, and review leaves of absence relevant to their company.
• Communication
­ In addition to having all required state and federal employment posters in place, Best in Class companies have an employee handbook that addresses each available leave of absence, stipulates an anti-moonlighting standard while on leave, cites a “rolling 12-month” timeframe for using certain leaves of absence, and has each employee sign an arbitration agreement.
• Policies
­ Develop formal policies to ensure compliance with each type of leave of absence to include: specific compliance standards, definition and duration of each leave of absence, employee eligibility standards, justification for taking each leave, impact on pay, seniority and benefits, appropriate paperwork and confidentiality standards, employee notification, re-employment criteria, and termination rights.
• Employment Practices Liability Insurance
­ This is insurance specifically designed to protect against loss incurred in litigating and settling various human resources issues including violations of federal and state leave of absence laws.
• Tracking Procedures
­ Best in Class companies have established detailed procedures that track all aspects of each type of leave of absence for every employee across legal time frames. This documentation typically includes: eligibility, relevant dates (e.g., request, approval, onset, and completion), number of leave hours taken, pay and benefits, forms utilized, verification and recertification, concurrent leave usage, and supervisory comments.
• Legal Guidance
­ Due to the detailed nature and severe penalties associated with various leaves of absence, Best in Class companies frequently rely on expert legal guidance when confronted with the technical complexities inherent with many of these situations.

SUMMARY
Landscape companies typically view the extent of leaves of absence as being vacation leave, sick leave, or workers’ compensation. That is not case; that is the reason leaves of absence are one of the most severe human resources mistakes a landscape company can make. In much the same way a landscaper must assess a job before offering an estimate, it must also conduct a similar assessment of the leaves of absence that may affect its operation. By addressing this challenging topic proactively, landscapers can improve their legal compliance, minimize legal risk to their companies, and reduce their own personal financial liability.

By-line at the conclusion of the article
Steven Cesare, Ph.D., is an Industrial Psychologist with the Harvest Group, a nation-wide consulting firm committed to helping landscape companies reach their potential. If you have any questions on this article, or any other human resources issue, please contact Steve at (760) 685-3800 or at Steve@harvestlandscapeconsulting.com.

By Head Harvester Steven Cesare, PhD

Keeping tabs on your employees’ employment eligibility can be a headache, but it is one contractors need to deal with. Here’s how.

While human resources issues (e.g., selection, training, OSHA) are frequent concerns for all companies, compliance with immigration laws is a top priority for many, especially those in the landscape industry. Failure to meet government standards related to immigration laws can have extremely serious and increasingly costly consequences.

Much of this concern is based on the Immigration Reform and Control Act (1986), which requires all U.S. employers to verify the employment eligibility and identity of all employees hired after Nov. 6, 1986. The law also requires employers not discriminate against individuals on the basis of national origin or citizenship, or to require more or different documents from a particular individual. A vital component of this frequently-misunderstood and poorly-applied process is the Employment Eligibility Verification Form, more commonly known as the I-9 Form.

This article presents the requirements of the I-9 Form, outlines possible consequences of non-compliance, and shares industry-wide questions and best practices aimed at improving landscapers’ understanding while minimizing financial cost to their organizations.

EMPLOYER REQUIREMENTS.
To maintain legal compliance, all employers must:

• Periodically review the documents submitted for Section 2 to ensure their expiration dates have not been exceeded, and if they have expired, complete Section 3 of the I-9 Form immediately.
• Retain the I-9 Form for three years after the date the person begins work or one year after the person’s employment is terminated, whichever is later.

POTENTIAL EMPLOYER PENALTIES.
The I-9 Form is relatively easy to administer, but many employers do not complete it properly or on time. Failure to comply can have serious and costly impact on the employer.

If an employer makes a mistake on any I-9 Form, does not retain the I-9 Forms for the proper length of time, or does not allow the government to review the I-9 Forms when requested, the employer must pay a fine between $110 and $1,100 for each I-9 Form violation.

If the Department of Homeland Security determines that an employer has “knowingly” hired or continues to employ unauthorized aliens, the employer could pay civil penalties between $375 and $16,000 for each unauthorized alien. If an investigation reveals that an employer has falsified documents associated with the I-9 Form, the employer can be ordered to pay up to $6,500 for each fraudulent document.

BEST IN CLASS PRACTICES.
In an effort to improve the efficiency and reduce the company’s financial risk in managing the I-9 process, here are some best in class practices used by top landscapers.

• Train all appropriate staff on how to complete an I-9 Form.
• Make sure the company has a formal written policy declaring its compliance with all immigration laws and I-9 Form procedures.
• I-9 Forms must not be stored in the employee’s personnel file, but kept in a separate file. It is best to have all current employees’ I-9 Forms kept in a binder and a separate binder for all inactive employees’ I-9 Forms. Both binders should be alphabetized by employee last name. This two-binder solution enables the company to track each group by its unique retention criteria.

Article originally printed in the November 2010 issue of Lawn and Landscape.