Being the president of a small company, I ask my staff to wear many hats. Ana has helped our organization develop policies and procedures that mirror our lead position within our industry. I foresee a long standing relationship with Ana and her staff at People First.
J. Michael Pakradooni
Atlantic Refrigeration Corp
Delray Beach, Florida
Insubordination
Q. What does the definition of insubordination cover? One of my employees rolled her eyes and gestured in a disrespectful fashion when I asked her to obtain information for me in connection with her job duties. When I asked her about this, she said she was trying to finish up some work before leaving on vacation. She did not supply me with the information and her attitude is typical. Does her conduct constitute insubordination?
A. The short answer is that because the employee deliberately failed to supply you with the information you requested, her conduct could likely constitute insubordination. However, it may not be appropriate to take an adverse employment action against her, such as termination, without first establishing a written record of the employee’s insubordination.
It is a well-established principle that employees, including those who hold executory or supervisory powers, have a duty to obey all reasonable instructions of the employer. See Cal. Lab. Code § 2856; Cornett v. NBC Weather Plus, LLC, 2008 NY Slip Op 50021U 1, 5 (N.Y. Sup. Ct. 2008).
Even if the instruction is given in bad faith, an employee may still have an obligation to perform and then, later, enter into a grievance process. See Reilly v. Polychrome Corp. and Sun Chemical Corp., 872 F.Supp. 1265, 1268 (1995) (citing Development Co. of Am. v. King, 161 F. 91 (2d Cir. 1908)). This duty exists to ensure that employers can effectively run their businesses.
Insubordination may involve different factual scenarios, but is generally defined as a willful or intentional failure to obey a lawful and reasonable request of a supervisor.
The elements of insubordination commonly include: (1) a direct or implied order that was issued to an employee, (2) the employee received and understood the order and (3) the employee refused to obey the order either through a statement of refusal or nonperformance.
Insubordination should not be confused with insolence. Although both may serve as grounds for termination, insubordination most commonly has to do with an employee’s refusal to perform, whereas insolence tends to involve an employee being rude or disrespectful.
Job Analysis
Q. How do I conduct a job analysis to ensure the job description actually matches the duties performed by the employee in the job?
A. Job descriptions are used for a variety of reasons. They are a tool for recruiting, determining salary ranges and levels or grades, establishing job titles, creating employee’s job goals and objectives, and conducting performance reviews. They can also be used for career planning, creating reasonable accommodations and meeting legal requirements for compliance purposes. Because of this, it is very important to have written job descriptions that accurately reflect the employees’ current job duties and responsibilities.
Employers should audit their job descriptions every few years, usually in conjunction with a compensation study and whenever the organization’s purpose, mission or structure changes. One way to audit or create job descriptions is to conduct a job analysis. A job analysis is the process of gathering, examining and interpreting data about the job’s tasks and responsibilities. It generally includes tracking an employee’s duties and the duration of each task, observing the employee performing his or her job, interviewing the employee, managers and others who interact with the employee, and comparing the job to other jobs in the same department and job grade or job family. An important concept in job analysis is that it is an evaluation of the job, not the person doing the job. The final product from a job analysis includes a thorough understanding of the essential functions of the job, a list of all duties and responsibilities, a percentage of time spent for each group of tasks, the job’s relative importance in comparison with other jobs, the knowledge, skills and abilities that are needed to perform the job, and the conditions under which the work is completed.
Workplace Poster Requirement
Q.We often put workplace posters on our company intranet. If we only post them there, will we be in compliance?
A.Intranets can be effective tools to communicate with employees, especially if employees are geographically dispersed. Many employers also use company intranets to post their company newsletters and handbooks to ease the administrative burdens that physical distribution can create. But using your company intranet as the sole vehicle for displaying federally mandated workplace employment posters may not relieve you of your obligation under Fair Labor Standards Act (FLSA) regulations, for example, to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy” ( 29 CFR 516.4 . ) Required posters must be displayed “so they are easily visible to the intended audience,” according to the U.S. Department of Labor instructions found in http://www.dol.gov/index.htm.
Americans with Disabilities Act
Q. What employers are covered by title I of the ADA, and when is the coverage effective?
A. The title I employment provisions apply to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994.
Q. What practices and activities are covered by the employment nondiscrimination requirements?
A. The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
Overtime
Q.When is overtime due?
A. For covered, nonexempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.
Some states also have enacted overtime laws. Where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).
Employee Handbook
Q. What is the value of having an employee handbook?
A. The Employee Handbook is a critical part of protecting your business. Having an effective handbook in place can help you keep your business out of court, improve overall operations, clarify employee expectations, and establish clear communication.