By JIMMY MILLER
When NALP General Counsel Richard Lehr pulled up a chair and table to discuss common labor law issues at Landscapes 2018, he ran through a list of seven typical problems that arise in human resources.
At his presentation at Landscapes 2018, there was no slideshow or formal presentation. The session was more of a hands-on exercise than it was anything else.
“Please interrupt,” Lehr says. “I’d rather have a discussion than a speech.”
Lehr ran down a list of bullet points he distributed to everyone attending the session. He primarily discussed wage and hour compliance, medical issues, and harassment policies, which, as he reminded attendees, don’t have to be just sexual harassment claims.
Lehr says this is an excellent time of year for landscapers to do an internal audit on compliance as the autumn winds down. Here are a few highlights from his session:
- Wage and hour compliance: Lehr talked extensively about what kind of compensation is necessary for employees who work extra hours, work similar positions to those that they manage, and even how much money is owed for those who travel between
jobsites. That one in particularis tricky, Lehr says, because landscapers shouldn’t be paid for their commute to work but should be compensated for driving from one commercial or residential site to the next. He also talked about how to combat issues with independent contractors who complete jobs but can’t be paid to go back out to fix problems that arose while they worked at that site.
“I think it’s really important to lay out in advance with the individual that they know what is going to happen. You want to be sure that the amount for the return job doesn’t bring them below the minimum wage,” Lehr says. “I’d suggest having kind of a deadline on when that’d have to happen.” He also says that when it comes to compliance, it’s critical to always have an accurate record of hours worked over at least the last three years prepared to hand over.
- Harassment policies: Lehr says companies often hand new employees a bunch of paperwork during orientation or onboarding but never circle back to reinforce those policies through training. Legally, he says it’s best to keep policies broad, but when it comes down to sexual harassment, he says, “Have a touch-and-go policy. If you try to touch, you go. It’s that simple.” He also recommends that workplaces stay free of romantic partnerships, and those who allow it never permit it between a supervisor and his or her employee. Those who do allow those relationships might consider creating a signed document that says both parties are engaging in a consensual relationship free of pressure or fear that if they don’t enter the relationship, they’ll be punished or may lose their job.
- Medical issues: Lehr says 62 percent of Americans have some sort of chronic medical condition, and it’s not getting better with younger generations because they’re the first generation in centuries that won’t live longer than their parents. With that in mind, Lehr says medical issues arise frequently in human resources, particularly when it comes to workers compensation and paid medical leave. One issue he frequently talks about is how long to give someone on medical leave before having to make another hire, and how to handle the delicate situation of terminating that employee. Another item is ensuring employees aren’t taking medications that cause them to be impaired at work. “You can’t ask an employee to tell you what medication they’re taking, but what you can require is that employees disclose to you if they’re taking any prescription or over-the-counter medication that may have an adverse effect on performance,” Lehr says. “If you see that adverse effect, you have the right to say to them, ‘You can’t keep you in this position’… and ask your health care provider for an alternative treatment plan.”