Legal Compliance Questions of the Week

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Compensating Employees for the Company Holiday Party

Question:

Our company is having a company holiday party, so do we need to pay our employees to attend?

Answer:

It’s that time of year when companies are planning holiday parties as a way to build morale and celebrate the past year with their employees.  In regards to compensation for attending the company holiday party, the obligation to pay employees for attendance at a holiday party applies only to nonexempt employees.  Exempt employees do not need to be paid extra for time spent attending.  The big thing to consider is whether or not attendance is required.  If attendance at the event is strictly voluntary, and you clearly explain this up front with all employees (including non-exempt) then you are not required to pay employees to attend.  Holiday parties scheduled during the regular work day will always be compensated.  Conversely, no compensation is owed for holiday-party attendance that is 100% voluntary and strictly for the benefit of employees.

One other point to remember is that while attendance at a holiday party may be 100% voluntary for most employees, those who are working the event — even if the work is voluntary — must be paid.

In conclusion, when planning your holiday party, remember the following:

  • Make attendance at the holiday party entirely voluntary and clearly convey that message to employees.
  • Consider scheduling the party during regular working hours when nonexempt employees are paid anyway.
  • To the extent attendance is required, publish the hours of the party and enforce them.
  • Neither ask nor permit nonexempt employees to prepare for and/or work at the party outside regular work hours.
  • Remember there are various legal considerations. For example, serving alcohol, especially if provided without limitation, can lead to employee DUIs and tort claims, as well as reduced inhibitions that might lead to harassment claims.

 

We understand, there are just too many new Labor Laws to keep up with. Not only are there laws that govern hiring practices, safety concerns and recordkeeping requirements, then there are the compensation and benefit laws. Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Legal Compliance page for more information or call us if you have a specific question or need.

Impact of Equifax Breach on Human Resources

Question:

With all the buzz about the Equifax breach, do we need to do anything for our employees?

Answer:

Most likely, your company is not under any requirement to notify your employees.  However, ensuring the data you have on your employees is secure and educating your employees on the breach may be helpful.

During the months of May through July, Equifax, one of the major consumer credit reporting agencies, was hacked.   143 million Americans, which is 44% of the population, were impacted.  Anyone with a credit report has a chance that their confidential personal information including Social Security numbers, birth dates, addresses, and driver’s license numbers, was stolen. The stolen information could be used to commit financial crimes against your employees.

As an employer, you may encounter an employee needing to take off time to deal with this Equifax Breach. Employees can find out if they were affected by the breach by using a secure computer or encrypted network connection, to go to the Equifax website, www.equifaxsecurity2017.com. Scroll down and click on ‘Potential Impact.’ You will be asked to provide your last name and the last six digits of your Social Security number. (Note: be sure you use this specific website as there has been “spoof” sites created that look legitimate).

If an employee’s data was breached, Equifax is offering enrollment in their TrustedID Premier. The program provides up to $1 million in ID theft insurance, Social Security Number Scanning, 3-bureau credit file monitoring, and the option to freeze your Equifax credit report. Plus, the employees should consider placing a fraud alert or credit freeze on their credit reports from the other agencies including Experian, TransUnion, and Innovis.

  • A fraud alert warns lenders to take reasonable steps to verify your identity before providing credit.
  • A credit freeze restricts access to the employee’s credit report and the credit agency will send a personal ID number (PIN) that the employee will have to use to unfreeze their accounts. Note, it can take 24 – 72 hours to unfreeze an account with the PIN.

Your employees can freeze their credit with each of the major credit bureaus online using the following links. They WILL need to enter personal information to do so.

Equifax – https://www.freeze.equifax.com/Freeze/jsp/SFF_PersonalIDInfo.jsp  

Experian – https://www.experian.com/freeze/center.html

Transunion – https://www.transunion.com/credit-freeze/place-credit-freeze

Innovis – https://www.innovis.com/personal/securityFreeze

Encouraging your employees to update passwords on all online accounts with personal information is a good regular practice. Each account should have a unique password.  There are various password management tools that can be used to store and retrieve passwords such as KeePass or LastPass.  

Training your employees on cybersecurity will help provide them with the knowledge and tools to prevent other potential hacks. A good resource is our previous Question of the Week: Should HR Be Concerned About Cybersecurity And Phishing Scams?

Is your head spinning? Too many new employment laws to keep up with? Let strategic HR, inc. assist you with navigating the employment law minefield. We can help you with any of your Legal Compliance needs. Please visit our Compliance page for more information or feel free to call us if you have a specific question or need.

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2017 Updates to the Form I-9

Question:

Someone mentioned to me that we were using an old version of the Form I-9. What’s the latest version and where can I find it?

Answer:

On July 17, 2017, the US Citizenship and Immigration Services (USCIS) released a new version of the Form I-9. The new version has a few changes to the instructions and the list of acceptable documents. Plus, it should streamline the certification process for some foreign nationals. Employers completing the Form I-9 online will be able to select Form FS-240 (Consular Report of Birth Abroad).  

For more details on the changes, visit “What’s New” I-9 Central.  Employers can begin using the new I-9 (Rev. 07/17/2017 N) immediately​, but most ​are required to make the ​switch to the new form beginning September 18.

The Form I-9 is used to:

  • Verify employment eligibility in the United States, and
  • Must be completed within 3 days of an employee’s start date.

It is not required to:

  • Retain copies of the documentation proof;
  • However, many organizations do to prevent any confusion or errors.

The completed I-9 must be retained until one year after termination or three years after hire, whichever is longer. It is not required, but recommended, to retain all completed I-9s in a binder/folder. Some organizations will even keep terminated employee’s I-9 forms in a separate folder to aid in shredding once past the mandatory retention requirements.

 

We understand, there are just too many new Labor Laws to keep up with. Not only are there laws that govern hiring practices, safety concerns and recordkeeping requirements, then there are the compensation and benefit laws. Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Compliance page for more information or call us if you have a specific question or need.

Managing Frequent ADA Accommodations

Question:

I have an employee with a disability and I have made frequent ADA accommodations for them but lately their attendance is horrible.  Frequent call-ins for one thing or another or doctors’ visits have become the norm.  I can’t keep my production line running and I can’t plan for it.  Does the ADA require that I just live with this?  Are they exempt from my attendance policy as an accommodation?

Answer:

Although the ADA would like to require you to modify the schedule for this individual, and even in some circumstances alter the time and attendance requirement for this person as a reasonable accommodation, it is not necessary if it is causing an undue hardship.  Employers DO NOT have to exempt an employee from:

  • Time and attendance requirements,
  • Allow them to come and go as they please, or
  • Accept irregular, unreliable attendance.  

If the frequent and/or unpredictable nature of such absences put a strain on your operations (can’t meet production standards in this example) and a reasonable accommodation cannot be made, it is within your right to follow the attendance policy you have set forth for all of your employees.  If the poor attendance cannot be accommodated and it is causing production problems, customer issues, or costs you additional money in overtime to have someone “cover” for the missed shift, these may be examples of undue hardship for the company.  In this example, the employee is not meeting an essential duty of the job, ADA accommodations would impose an undue hardship, and discipline is warranted, up to and including termination.

According to the EEOC, It is not necessary to provide a reasonable accommodation if doing so would cause an undue hardship.  Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.  Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation, the employer’s size, financial resources, and the nature and structure of its operation.  For more detailed information on ADA Accommodations, visit The U.S. Equal Employment Opportunity Commission page: The ADA: Your Responsibilities as an Employer.

 

Is your head spinning? Too many new Labor Laws to keep up with? Let strategic HR, inc. assist you with navigating the workplace compliance minefield. We can help you with any of your  compliance needs. Please visit our Legal Compliance page for more information or feel free to call us if you have a specific question or need.

As a Federal Contractor, are you aware of the Affirmative Action Plan (AAP) Requirements by the OFCCP?

Question:

Are you a Federal Contractor?  If so, are your recruiters aware of the Federal Contractor AAP requirements to use the local State Employment Agency for job openings? Are they networking with veteran and disabled organizations to recruit and fulfill the 6.9% Veteran benchmark and 7% utilization goal for Disabled?  And, are they aware of your current year AAP goals for minorities and females as they recruit to fill those jobs with goals?  

Answer:

As a reminder, if you have a single federal contract of $50,000 or more AND 50 employees, you must record and document your outreach efforts by completing an Outreach Assessment as required by the Office of Federal Contract Compliance Programs (OFCCP).  This documentation is important in case of an OFCCP audit.  Note: Outreach and recruitment was the second most cited violation by the OFCCP in 2015.   

There are 3 questions that need to be analyzed in your recruiting efforts and documentation:  (These records must be retained for 3 years.)

  1. Did the recruiting activity attract qualified applicants who are protected veterans and/or disabled?
  2. Did the recruiting activity result in the hiring of protected veterans and/or individuals with disabilities?
  3. Did the recruiting activity expand your outreach to protected veterans and/or individuals with disabilities in the community?

It is required that contractors create an AAP within 120 days after the award of the federal contract.  Federal Contractor AAP requirements state that the following information must be documented and updated annually: 

  1. Number of protected veteran applicants; 
  2. Total number of applicants for all jobs; 
  3. Total number of job openings and jobs filled; 
  4. Number of protected veterans hired; and
  5. Total number of applicants hired.

 

A special thanks to Karen Whiteside, President of KBW Associates, for sharing her expertise with us. Karen’s website is at www.kbwassociates.com, To receive her quarterly newsletter, contact her at aapsuppport@kbwassociates.com or 760.771.6553.

 

Federal Contractors face a huge hurdle of regulations, including creating Affirmative Action Plans. Strategic HR, inc. knows that keeping abreast of legal compliance issues are important and can be a challenge, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues and by making sure you are informed of changes and reacting in a timely manner. Visit our Legal Compliance page to learn more about this helpful service.

 

Has Trump’s Administration Changed ACA Compliance?

Question:

With regards to the new presidential administration and ACA compliance, is it still necessary to provide the ACA forms to our employees or should we wait and see what happens and if the legislation is repealed?

Answer:

No, you definitely should not wait!  You will be out of compliance.  

Regardless of what is going to happen (repeal or not) the ACA compliance regulations are still in place TODAY.  So, employers must continue to ‘play by the rules’ until a legal ruling is in place.

The bottomline is to keep doing what you were doing.  

If you haven’t completed the forms yet, the good news is that the IRS actually extended the deadline for employers to furnish the 1095-B and 1095-C forms for 2016.  

  • Typically they are due on January 31.  The deadline has been extended until March 2, 2017 to get those forms out.  Not a lot of time but an extension is an extension.  

It is important to note that even though the dates to furnish these forms has been extended, the deadline for the 1094-B and 1094-C are still due March 31, 2017 (electronic filers) and February 28 (paper filers).  These documents are generally required by employers with 50+ employees, but check out the requirements to make sure you do (or do not) have to comply.

Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important and can get you into hot water if not done properly. Keeping appropriate recruiting and hiring documentation is vital to proving, if needed, your employment processes are compliant.  Strategic HR, inc. has a great online tool that’s affordable, easily downloaded and ready for immediate use.  Our Recordkeeping desktop reference has everything you need to see at-a-glance recordkeeping requirements mandated by law.  Visit our Desktop Reference page to learn more.

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When and Why Is It Important to Use Consensual Relationship Agreements?

Question:

We just found out that 2 of our employees are in a romantic relationship.  Although they’re not in a supervisor/subordinate relationship, shouldn’t we still be concerned?

Answer:

Although romantic relationships in the workplace are quite common, you do have reasons for concern about employees dating.

Of course, the #1 fear for most employers is the risk of a sexual harassment lawsuit.  The difficulty for the employer is proving that a relationship is consensual.  The best approach is to first meet with both employees independently and determine whether there is any possibility that the agreement is not consensual. In particular, you should:

  • Make sure that the employee understands the company’s sexual harassment policy;
  • Emphasize to your employee that they will not be retaliated against for reporting sexual harassment;
  • Explain the procedure for reporting sexual harassment; and
  • Document the employee’s file with a summary of the interview.

Assuming that the relationship is indeed consensual, a great tool is to require the employees enter a “Consensual Relationship Agreement.”   The agreement, signed by both employees and management, provides that the employees will not allow the relationship to interfere with or impact the work environment, and also confirms and documents that the relationship is consensual and voluntary.  It is highly encouraged that the employer attach a copy of the company’s sexual harassment policy to the agreement to prove that the employee was aware of the sexual harassment policy and had the opportunity to report any inappropriate conduct by the other employee.  If done properly, a consensual relationship agreement will make it more difficult for an employee to claim that the relationship was “unwelcome.”  In addition, the agreement will create a question about why the employee did not seek to stop the harassment by reporting it to management.

Consensual Relationship Agreements are an important tool in managing the risk of sexual harassment claims; however, they must be created and administered with care.

Unsure what a “Consensual Relationship Agreement” looks like? strategic HR, inc. has a Virtual HR Library that you can subscribe to that contains a sample of this agreement along with other HR related policies, forms, checklists, toolkits, and more.  As a subscriber of the Virtual HR Library, you would have access to these tools 24/7 and wherever possible, they are in Word or Excel to make it easy for you to modify as needed.  For a demo, contact us now.

Electronic vs. Paper I-9 Forms

Question:

Can I maintain my I-9 Forms electronically or do I need to keep a paper copy?

Answer:

Yes – the documents can be stored either way the employer prefers.  The U.S. Citizenship and Immigration Services (USCIS) does have basic requirements, however, if you wish to store your documents electronically.  The USCIS provides the following guidelines for electronic storage of the documents:

  • Include controls to ensure the integrity, accuracy and reliability of the electronic generation storage system.
  • Include controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically completed stored Form I-9, including the electronic signature, if used.
  • Include controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.
  • Include an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Form I-9, including the electronic signature, if used.
  • Include a detailed index of all data so that any particular record can be accessed immediately.
  • Produce a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.

The record retention requirements for storage do not change based on how the documents are stored – they stay the same.

Be sure you are using the newest I-9 effective January 22, 2017.

Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

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FMLA and Maternity Leave

Question:  

I am pregnant and am looking to take some time off after the baby is born under the Family Medical Leave Act.  I have worked for my employer for over 3 years off and on but they aren’t consecutive. Do I still qualify for FMLA?

Answer:

Everyone’s favorite HR answer….Maybe!  In order to be eligible to take leave under the FMLA, an employee must:

  • Work for a covered employer
  • Work 1,250 hours during the 12 months prior to the start of leave
  • Work at a location where 50 or more employees work at that location or within 75 miles of it
  • Have worked for the employer for 12 months

However, the 12 months of employment are not required to be consecutive to qualify for FMLA leave. The regulations state, “…only employment within seven years is counted unless the break in service is due to an employee’s fulfillment of military obligations, or governed by a collective bargaining agreement or other written agreement.”

For more details on FMLA – See the Federal Department of Labor page regarding the Federal Leave. Employers are also reminded that some states have more generous FMLA laws.  Check your state regulations as well to make sure you are complying with your state leave laws.

Strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.

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English-Only Rules in the Workplace

Question:

The owner of our company wants to institute an “English-only” rule, requiring our employees to only speak English in the workplace.  I’m just not comfortable with this at all.  Is this even legal?

Answer:

The Equal Employment Opportunity Commission (EEOC) has issued a position statement indicating that English only policies in the workplace violate the law – unless there is a business necessity.  The EEOC has indicated that the rule should be limited to times when it is needed for safe and/or efficient operations.  If a rule appears justified and is instituted, it is highly recommended that the rule not be enforced during breaks and lunches.  For the EEOC statement regarding English only workplace rules go to:-  EEOC, Employment Rights of Immigrants Under Federal Anti-Discrimination Laws and scroll down to “Speak-English-Only Rules.

A few thoughts to keep in mind, you can translate critical documents into other languages fairly easily.  Think about what those key documents or postings may be. A few examples are employment application, employee handbook, safety warnings.  Often the cost to translate is minimal either using an online solution or reaching out to a translation company (ie. Affordable Language Services)

 

strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by fielding your questions and offering resources to help you identify and mitigate compliance issues. Visit our Compliance page to learn about our auditing services which can help you identify trouble spots in your HR function.

 

 

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Changes to FLSA – Paying Non-Exempt Employees

Question:

What are the important things to consider when paying a non-exempt employee on a salaried basis? What are best practices and how should we approach timekeeping to ensure those employees are still getting paid overtime when necessary?

Answer:

The changes to FLSA are creating challenges for all of us. But, it also creates opportunities to correct anything you’ve been wanting to fix. Some things you’ll want to think about:

– Be prepared to discuss the difference between non-exempt and exempt with the employees.  If you are moving current exempt employees to non-exempt, you may see some concerns that they aren’t valued as much or feel like they are being demoted.  Just be sure they understand the change is simply for legal purposes but they still are as valuable to the organization.

– If a non-exempt employee is salaried, you will be paying them a set salary regardless of how many hours they work a week.  Meaning if they are scheduled to work 40 and only work 35, you are saying they will be paid for 40.  How will you handle the discrepancies? Paying 40 hours no matter what? Must use PTO to make up the differences?

– Determine how you are going to track time if you aren’t already.  Will employees clock in and out with a time clock?  This may come with resistance if these individuals were exempt before and didn’t have to log their time.  Will they just record their time and submit it at the end of the week? Do they understand they need to record ALL time (i.e. “I just stayed late to get a few things done but didn’t want to charge the company for it”). Unfortunately, it is critical that the time is tracked and submitted for approval to avoid any potential litigation over hours worked and not paid.

– How will you handle overtime? These new non-exempt employees need to know your policy on working over 40 hours?  Is it automatically approved, if so, how many hours are approved?  If it isn’t, who do they have to get approval from?  What will happen if they work it and don’t obtain approval ahead of time?  (Remember, you have to pay them the overtime regardless of whether they got approval or not.  You can discipline them for not getting the approval but cannot dock their pay).

In looking at the implications of the changes to FLSA look both at the requirements of the law AND the impact to employee morale. Figure out how you will ensure compliance and maintain morale.

Is your head spinning? Too many new Labor Laws to keep up with? Let strategic HR, inc. assist you with navigating the employment law minefield. We can help you with any of your Legal Compliance needs. Please visit our Compliance page for more information or feel free to call us if you have a specific question or need.

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FMLA Eligibility for Returning Employee

Question: 

We have an employee that worked for us for 2 years. She left for 2 years and has now returned.  Yesterday she asked me for FMLA paperwork for an upcoming procedure. Is she still eligible for FMLA?  I thought they had to be here for 12 consecutive months and meet an hours requirement.

Answer:

According to the Department of Labor, the 12 months of employment do not have to be consecutive. That means any time previously worked for the same employer (including seasonal work) could, in most cases, be used to meet the 12-month requirement. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.  So, assuming the procedure is an FMLA qualifying event, she may be eligible for the leave.

FMLA, the ADAAA and other labor laws can be difficult to understand, let alone enforce. That’s where strategic HR, inc. has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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The WARN Act – Do You Need To Comply?

Question:

We are laying off staff in the next few months and I have been advised to look at the WARN act to make sure I comply.  What is WARN and as an employer of 32 employees, do I have to comply?

Answer:

WARN is the Worker Adjustment and Retraining Notification Act that became effective in February 1989.  WARN offers protection to workers and even communities by requiring employers to provide a 60 day notice in advance of a plant closing or what they deem as a mass layoff.  The Act is only applicable to employers with 100 or more employees. With the size of your company, it does not appear to pertain to you.

Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

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Can An Employee Bring Their Dog Into the Office for Emotional Support?

Question:

An employee at our workplace is requesting that we allow him to bring his dog to work for emotional support after a difficult life event. Are we legally required to allow this?

Answer:

The legal aspect that must be considered with this request would be the Americans with Disabilities Act. However, under the ADA, animals that are defined as providing companionship or emotional support to their owner are not protected under that law.  Under the ADA, service animals would be allowed, however, their definition of service animal is one that performs specific tasks directly related to a person’s disability (reminding someone to take a medication, pressing elevator buttons, sending for help, etc.). Animals providing emotional support do not fall within that category. Review more on the ADA website. 

Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

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Are Your Labor Law Posters Out of Date?

Question:  

I regularly receive notices from companies telling me that my labor law posters are out of date.  They seem very legitimate but I receive so many I’m starting to believe they may not be true.  How do I know if there is a change?

Answer:  

The notices you receive are a good reminder to check your state labor page to see if there were recent updates that need to be posted.  These sites are usually the best source of information on required updates.  In early 2016 we will see changes in many state laws that require poster updates including California, Colorado, Florida, Kentucky, Maryland, Michigan, Minnesota, Missouri, New York, Ohio, Oregon, and Rhode Island, so be sure and check.  Keep in mind, it is never necessary for you to purchase a new poster, although it is convenient.  All of the posters you need can be downloaded from the Federal DOL site and your state labor law page and posted for employees.  This will meet the same requirement as the fancy posters you can purchase.    

Are you concerned that you are not in compliance with the required labor laws? Let strategic HR, inc. help. Visit our Compliance page for more information.

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Preparing for the Fair Labor Standards Act-Changes in 2016

Question:

Is there anything I should be doing now to help prepare for the possible upcoming changes to the Fair Labor Standards Act (FLSA) standards?

Answer:

As you may be aware, the Department of Labor Wage and Hour Division is currently reviewing the Fair Labor Standards Act (FLSA) regulation for determining exemptions for “white collar” employees.  As detailed in the Fact Sheet, this ruling would likely have a huge impact on the standard salary level for white collar workers.

It is too soon to make actual changes to employees classifications based on this ruling as it is not officially approved.  However, speculation is that we will see the final ruling in late in 2016.  In the meantime, you should be looking at your current employee classification and start thinking about the changes may impact your organization.  How many employees may be impacted? You should look at employees that are being paid as an exempt employee up to approximately $50,500 to determine how the changes may impact those individuals.  This would also be a good time to get your job descriptions updated and make sure the positions have been properly classified according to the current regulations.

The passing and implementation has yet to occur but it is never too early to put a contingency plan in place and at a minimum update the job descriptions for accuracy.

Too many new Labor Law changes to keep up with? Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Compliance page for more information or call us if you have a specific question or need.

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Letting An Employee Go: Should I Put It In Writing?

Question:

If I am letting an employee go for any reason, is it a good idea to put it in writing or should I not?

Answer:

Yes!  Unless there is some obscure situation, it is typically a good idea to put an employee’s termination information in writing to them.  Whether the termination is a for cause termination or a lay off, putting it in writing (without too much detail) provides closure and important information that the employee was probably not properly hearing during the termination meeting.  Such a letter would include a brief description of the reason for the termination (You are being laid off due to our current economic conditions or you are being terminated for violation of our attendance policy).  It should also include how and when they will receive their final paycheck as well as when their benefits will terminate (if applicable).  This letter will help clarify the events in process and eliminate any unnecessary confusion.

Strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.

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The Pros and Cons of Using a “Release” During a Termination Case

Question:

What are the pros and cons of using a “release” during a termination case?

Answer:

Many companies assume that an employee termination automatically means offering the employee severance pay and a separation agreement with a release of claims to avoid a potential employee lawsuit.  There are certainly advantages to the use of separation agreements to prevent possible legal headaches, but they may not be appropriate in all instances.

An employer should consider factors, such as employer policy, practice and employee relations philosophy when determining whether to offer a terminated employee a severance package in return for a release of claims. Typically the amount of severance is insignificant when compared to the cost of defending an employee claim, especially when the termination is a difficult one or the person being terminated is likely to assert a claim.  On the other hand, there are sometimes factors that may deter you from offering severance with a release of claims.  For example, some employers offer severance to ALL employees due to fear of lawsuits (regardless for the reason of the termination), and this can drive up overall costs for the company. It is also important to note that just by offering an employee a severance agreement with a release of claims; the company may unintentionally generate claims.

Finally, employers should carefully consider any precedent established by offering severance with a release of claims to only certain groups of employees.  Some terminated employees have claimed “reverse discrimination” and argued that the employer engaged in unlawful discrimination due to offering severance only to terminated employees in a certain category.

Labor laws are constantly changing and Strategic HR, inc. knows how difficult it can be to keep up. We offer a handy desktop reference that defines the different labor laws and how they apply to employers. Please visit our HR Store for this and other valuable desktop references.

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Lactation Accommodation in the Workplace

Question:

I just came across an article on lactation accommodation in the workplace.  Is it correct to assume that this policy applies to all work places? And, if so, do you have any suggestions on possible solutions?

Answer:

The Patient Protection and Affordable Care Act, enacted March 23, 2010, requires employers subject to the Fair Labor Standards Act (FLSA)—which is most employers—to provide unpaid, reasonable break time for an employee to express breast milk for a year after her child’s birth. Even if you are the rare employer that has no such obligation, you may still wish to provide break times. Under the Act, employers are required to provide a private place for a woman to pump breast milk or to breastfeed a child during which time no duties may be required to be performed.  It is important to note that this private place cannot be a bathroom, so many employers assign a visitor’s office or a conference room as the designated area.

Employers should use this opportunity to create a location for women that demonstrates their commitment to a family-friendly work environment, and make the room as comfortable as possible. It is also important that your supervisors are trained on the new requirements, so they are supportive and encourage others not to intrude on the employees’ privacy during this time.  It is also recommended that a policy for such break time be included in the handbook so it is clear on how employees can take advantage of this benefit.

Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

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Employment Posters for Remote Employees

QUESTION:

I understand I have to post employment posters at the workplace but what do I do for my remote employees or those working from home?

ANSWER:

According to the Department of Labor’s website, they are currently reviewing whether electronic notification could be used to satisfy notice posting requirements.  As of today, only physical postings are appropriate.  So what does that mean to employees that are the single employees at a remote location or work from home?  To limit liability, the correct thing to do is to send paper copies to the employees.  Some employers, however, have taken the stance of showing ‘good faith effort’ by providing the documents electronically to the employees via email or company Intranet.  Keep in mind, many regulations require applicants to view posters (FMLA, EEO, E-Verify); so, thinking about making posters electronic across the board is not advisable.  In addition, some posters are required to be specific fonts and/or specific paper sizes so altering their appearance is also not advisable.  Finally, notices must also be available in an accessible format, as needed, to persons with disabilities that limit the ability to see or read.  Keep these requirements in mind when making your decision about where and how to post your required notices.

Labor laws are constantly changing and Strategic HR, inc. knows how difficult it can be to keep up. We offer a handy desktop reference that defines the different labor laws and how they apply to employers. Please visit our HR Store for this and other valuable desktop references.

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How Confidential Are Personnel Files?

QUESTION:

Do we have to provide an employee’s personnel file if there is a subpoena presented even if we have language in our employee handbook says it is considered confidential and property of the company?

ANSWER:

Employers should not show employee files to anyone, except the employee, unless they are required to do so by law.  Legal requests can come from the employee’s legal representative, other attorney’s involved in a complaint, or through other legal departments such as OSHA, EEOC, DOL, etc.  Even though your company policy states that the files are considered confidential and the property of the company, legal requirements, such as a subpoena trump this policy.  Companies can file a protest to the request but it is not prudent unless advised by your attorney.  If in doubt, contact your attorney if a subpoena for records shows up at your door.

 

We understand, there are just too many new Labor Laws to keep up with. Not only are there laws that govern hiring practices, safety concerns and recordkeeping requirements, then there are the compensation and benefit laws. Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Compliance page for more information or call us if you have a specific question or need.

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Value of Job Descriptions

Question:

Do I really need job descriptions for my employees?  Are they legally required?  We have a small staff and everyone has to be willing to do everything.  Job descriptions will just give them a reason to not do something I ask them to do.

Answer: 

No, job descriptions are not a legally required document, however, they are an important part of compliance and can help protect an organization in a number of different ways.  Job descriptions help define a job by determining and documenting the responsibilities of the position and the physical requirements of the job.  This document is not “how to” or a procedure outline (which can change frequently) but rather what individuals are accountable for in the job.  Defining this in a job description can help by:

  • Providing a clear picture of the job to applicants applying for the job
  • Helping current employees see what they are accountable for
  • Helping supervisor coach to improved performance for employees
  • Help determine appropriate salary levels for a position based on the expectations, education and experience requirements for the role
  • Allow individuals to evaluate the physical aspects necessary for the position and what the work environment is like – does it require heavy lifting, is it a “desk job”, does it involve frequent travel, computer work, phone calls, etc.
  • Allow organizations to determine if an employee can perform the physical functions of a job or if an accommodation could be made for those applying for a job or coming off of a medical leave or workers compensation leave (as an example)

It is agreed, if your job descriptions aren’t up to date, they can cause more harm than good.  However, the positive aspects of a job description outweigh the negatives and can help you in legal matters providing you with documentation on the job requirements and support actions you may have taken.  As a supervisor, take a few minutes during the performance review process to work with your employees and update the job description so they can stay current.  Doing one at a time with reviews make the process a bit more bearable.

Job descriptions are really something that shouldn’t be relegated to the bottom of the “wish list”. When done correctly they serve a multitude of functions. However, we know how stretched the average human resources department (or person) is, and job descriptions are usually a “when time permits” activity. If you are putting off creating or revising your job descriptions due to lack of time or staff, give us a call. We would love to help – dare we say it’s “in our job description”. Visit our Benefits and Compensation page to learn how we can assist you with your job description and other needs.

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Mandatory Work Hours During Busy Times

Question:

Can we dictate “mandatory” hours for our exempt and non-exempt employees during busy times? We do not typically require employees to work specific hours (during the evening or on the weekend) but during our busy times we need the extra coverage.  Can I do this legally?

Answer:

Yes!  As an employer you may require employees to work a certain number of hours and/or even specific hours of the day or specific days.  The Fair Labor Standards Act defines 40 hours as a standard work week, however, it does not put an upper limit on the number of hours you can have your employees work.  There are of course, employee relations concerns with such a mandate but from a legal perspective, you can require your employees to work as much as you need and whatever schedule is necessary to meet your business needs.  It is recommended that you work with your employees to clearly communicate such mandates throughout the on-boarding process, or if it is new requirement help them understand why the change to avoid less-than-happy employees.

One caveat, the FLSA does have working hour restrictions in place for child labor AND does require overtime payments (paying time and a one half) for hours worked over 40 in a work week.  Some states even require overtime payment if you work more than 8 hours in a day.  Keep those things in mind when you are determining who needs to work those large number of hours and check out:www.dol.gov/whd/flsa for additional information on those requirements.

Is your head spinning? Too many new Labor Law to keep up with? Let strategic HR, inc. assist you with navigating the employment law minefield. We can help you with any of your Legal Compliance needs. Please visit our Compliance page for more information or feel free to call us if you have a specific question or need.

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Employment Posters

Question:

We have our federal employment posters available for employees, but which posters must also be seen by applicants and what’s the best way to ensure that we are complying?

Answer:

With the majority of recruiting transactions, happening online, it can be difficult to comply with the requirements for would-be employees to have access to employment posters. There are three federal employment law posters that must be available to applicants: the FMLA poster, the EEO poster and the Employee Polygraph Protection Act poster. For applicants coming to your location you need to make sure these three posters are in a place where candidates will see them.

The Department of Labor (DOL) offers this guidance:
“Most of our poster regulations were written before the Internet was used for job postings. Until the regulations are revised, please place a prominent notice on the website where the job postings are listed stating that ‘Applicants have rights under Federal Employment Laws’ and provide a link to the three posters:

Please note, however, that posting the notice on the employer’s website in this manner is not a substitute for posting these EEO posters in conspicuous places on the employer’s premises where otherwise required.

It’s safe to say this is one legal requirement that we’ll need to keep an eye on!

Strategic HR, inc. knows that keeping abreast of legal compliance issues and deadlines can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues and by making sure you are informed of changes and reacting in a timely manner. Our HR Audit will help your organization identify trouble spots in your HR function. Visit our HR Audit page to learn more about this helpful service.

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New Rules For Federal Contractors

Question:

What can you tell me about the new OFCCP compliance requirements that start March 24, 2014?

Answer:

If you are a federal contractor there are new Affirmative Action Plan (AAP) regulations that go into effect today. The Office of Federal Contract Compliance Programs (OFCCP) advises that a federal contractor should not necessarily wait to gather data on Veteran and Disabled applicants until their AAP is developed after the effective date.

The regulations state that if your AAP began on January 1, 2014 you do not have to comply with the new regulations until January 1, 2015. If your AAP begins (for example) on May 3, 2014 you must begin implementing all the new compliance requirements as of that date. Although not everyone has to comply right away, in a recent webcast presentation by the OFCCP, they “strongly recommend” putting the regulations into practice as soon as possible following March 24th. The first AAP developed after the March 24, 2014 effective date is considered a transitional AAP by the OFCCP and they may accord compliance leniency for that first year.

Here are some important actions to take starting on 3/24/14 to comply with the new regulations:

  1. Update self-identification forms for individuals with disabilities and protected veterans.
  2. Implement pre-offer and post-offer voluntary self-identification forms.
  3. Update data collection systems.
  4. Post EEO policy on bulletin boards with statement required by 41 CFR 60-300.44.
  5. Engage in outreach and recruitment activities to recruit protected veterans and individuals with disabilities.
  6. Document all outreach and recruitment activities and retain for three (3) years.
  7. Conduct an annual review of these efforts and evaluate their effectiveness.
  8. Set-up self-audit and reporting systems for protected veterans as required by 41 CFR 60-300.44(h).
  9. Send notification letters of EEO commitment to all subcontractors, vendors, recruitment sources and unions.
  10. Incorporate EEO clause for the disabled and separate clause – in bold – for veterans and disabled into contracts and purchase orders.
  11. Adopt utilization goals for individuals with disabilities and hiring benchmarks for veterans.

This list is not all inclusive but highlights the main portions of the new regulations.

The most recent information published by the OFCCP regarding revised regulations for protected veterans can be found at: http://www.dol.gov/ofccp/regs/compliance/faqs/VEVRAA_faq.htm.

For individuals with disabilities visit: http://www.dol.gov/ofccp/regs/compliance/faqs/503_faq.htm.

A special thanks to Karen Whiteside, President of KBW Associates, for sharing her expertise with us. Karen’s website is at www.kbwassociates.com, To receive her quarterly newsletter, contact her at aapsuppport@kbwassociates.com or 760.771.6553.

Federal Contractors face a huge hurdle of regulations, including creating Affirmative Action Plans. Strategic HR, inc. knows that keeping abreast of legal compliance issues are important and can be a challenge, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues and by making sure you are informed of changes and reacting in a timely manner. Visit our Compliance page to learn more about this helpful service.

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Small Necessities Laws

Question:

What is the Small Necessities Leave Act and should I be concerned about it?

Answer:

The Small Necessities Leave Act (SNLA) gives employees the right to take leave for family obligations providing a limited number of hours annually, covering specific activities that are not included under the Federal Family and Medical Leave Act (FMLA) – such as for parents to attend school-related events and activities for their children. The hours of leave allowed under the SNLA is in addition to the 12 weeks leave allowed under the FMLA. Additionally, the hours do not need to be taken all at once, but can be taken intermittently, as long as it does not exceed the allowed maximum as mandated by the state.

Only a small number of states offer SNLA, these include:

  • California – 40 hours
  • DC – 24 hours
  • Illinois – 8 hours
  • Louisiana – 16 hours
  • Massachusetts – 24 hours
  • Minnesota – 16 hours
  • North Carolina – 4 hours
  • Rhode Island – 10 hours
  • Vermont – 12 hours
  • Nevada makes it unlawful to terminate an employee for using leave to attend a child’s school-related activities.

To be eligible for the SNLA an employee must have been employed with employer for at least 12 months, having actually worked at least 1,250 hours during the previous 12 months with that employer, and be employed at a company with 50 or more employees within 75 miles.

SNLA can be taken to:

  • Participate in school activities directly related to the educational advancement of the employee’s child(ren), such as for parent-teacher conferences or interviewing for a new school.
  • Accompany the child(ren) of the employee to routine medical or dental appointments, such as checkups or vaccinations.
  • Accompany an elderly relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder’s care, such as interviewing at nursing homes or group homes.

The employee must give seven days’ notice of intent to take such a leave if the leave is foreseeable. If the need for the leave is not foreseeable, the employee must give notice as soon as practicable. Leave can be calendar or fiscal year.

The SNLA leave is generally unpaid leave but, similar to the FMLA, employees may use accrued paid time and have the leave paid or the employer may require that the employee use such accrued time.

One of the stickiest aspects to human resources management is Employee Relations. Are you having difficulties in your company that stem from employee-employer related issues? Strategic HR, inc. has years of experience in employment relations. Visit our Employee Relations page to learn how we can help you resolve some of your toughest ER problems.

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IRS Fresh Start Initiative

Question:

What exactly is the IRS “fresh start initiative” and is there any benefit for a small business?

Answer:

The IRS Fresh Start Initiative is part of IRS’s refined tax collection process. The goal of this program, implemented in early 2011, is to make IRS tax payment easier for small businesses. Your business can make monthly payments through an installment agreement if you’re not financially able to pay your tax debt immediately. It is important to note that you will reduce or eliminate the amount of penalties and interest you pay and avoid the fee associated with setting up an installment agreement if you pay your tax bill in full.

Small businesses who currently have employees can qualify for an In-Business Trust Fund Express Installment Agreement (IBTF-Express IA). These installment agreements generally do not require a financial statement or financial verification as part of the application process.

The criteria to qualify for an IBTF-Express IA are:

  • You owe $25,000 or less at the time the agreement is established. If you owe more than $25,000, you may pay down the liability before entering into the agreement in order to qualify.
  • The debt must be paid within 24-months or prior to the Collection Statute Expiration Date (CSED), whichever is earlier.
  • You must enroll in a Direct Debit Installment Agreement (DDIA) if the amount you owe is between $10,000 and $25,000.
  • You must be compliant with all filing and payment requirements.

To Request an In-Business Trust Fund Express Installment Agreement, contact your local IRS office.

** Speaking of taxes, don’t forget the deadline to distribute W-2’s and 1099’s to your employees and contractors was January 31st.  Additionally, the deadline for filing Form 940 (Employer’s Annual Federal Unemployment Tax Return Tax Form) was also January 31st.

We understand, there are just too many Labor Laws to keep up with. Not only are there laws that govern hiring practices, safety concerns and recordkeeping requirements, then there are the compensation and benefit laws. Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Compliance page for more information or call us if you have a specific question or need.

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Unemployment For Seasonal Workers

Question:

Are seasonal employees eligible for unemployment if they meet the minimum requirements of length of service and wages?

Answer:

More and more states are saying “no”. There are many jobs that only last for a portion of the year, which have typically been eligible for jobless benefits. Federal law gives each state the option to decide whether or not to allow those seasonal workers to receive benefits. Many states are stripping some workers of their eligibility as a way to save money.

For example, some states identify specific seasonal industries that operate approximately nine months out of the year and do not allow those workers unemployment benefits in the off-season. In all, approximately 15 states restrict the payment of unemployment benefits to workers who earned some or most of their wages in seasonal jobs. The seasons are defined differently with some being based on the time frame and others on the industry.

Currently, federal law prohibits professional athletes from accessing unemployment benefits between seasons. Additionally, teachers who work directly for school districts have been ineligible to take unemployment during the summer.

However, for other workers it’s up to the individual states to decide. As a result, as with many thing HR-related, it is important to check the unemployment laws within your state.

Are you concerned that you are not in compliance with required labor laws? Do you have multiple locations in different states and struggle with knowing which laws to follow? Don’t know where to turn to find the latest news regarding HR compliance? Let strategic HR, inc. help keep you in the loop and out of hot water. Visit our Compliance page for more information on how we can help.

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Voluntary Classification Settlement Program

Question:

What is the new Voluntary Classification Settlement Program (VCSP) and what, if anything, does my company need to do?

Answer:

The new Voluntary Classification Settlement Program (VCSP) was developed by the IRS to provide payroll tax relief to employers that reclassify their workers (as employees) for future tax periods. Part of the Fresh Start initiative created by the IRS, this program aims to increase compliance and reduce the tax burden for employers. Under the VCSP employers will pay 10 percent of the employment taxes that would have been due for the most recent tax year on the workers being reclassified. Employers also avoid interest and penalties on the payment and will not undergo an audit for tax purposes in prior years.

To take part employees in question must have previously been treated as independent contractors or other non-employees. Employers need to file an application with the IRS at least 60 days before beginning the treatment of these workers as employees. Employers will be notified whether or not they are eligible to participate and in doing so, the IRS will not share the reclassification with the Department of Labor.

It’s never ending. Just when you thought you had a handle on recent regulatory changes something new crops up. There isn’t enough time in the day to keep on top of everything! That’s where strategic HR, inc. can help. We stay on top of the changes so you don’t have to. Ask us for assistance with any of your benefits, compensation or other regulatory needs. Please visit our Benefits & Compensation page for more information on any of these services.

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EEO-1 Report Deadline Looming

Question:

It’s EEO-1 Reporting Time! Do you know if you are required to complete this form?

Answer:

There are two groups of employers that must file an EEO-1 Standard form 100. If you fall into ONE of these categories (NOT BOTH) you must file.

All private employers who are:

  • subject to Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) with 100 or more employees EXCLUDING State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations;
OR
  • subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

If you fit into one of the two categories above, be sure to get your report submitted and certified by September 30th, 2013!

As if there wasn’t enough to do in HR with hiring, training, benefits, and employee relations, then there are the occasional legal deadlines for tax forms, OSHA requirements and EEO reporting. It’s hard to keep it all straight. That’s where strategic HR, inc. comes in handy. We’re aware of all those pesky deadlines and, more importantly, are in tune with any changes to the reporting requirements. We can help keep you out of hot water! Visit our Legal Compliance page to learn more about what we can do to help keep your company compliant.

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Tip Credit Regulations

Question:

What can you tell me about the tip credit regulation issued by the Department of Labor in 2011?

Answer:

The Wage and Hour Division of the Department of Labor states that, effective May 5, 2011, a tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit.  The difference between the hourly rate paid by the employer and the standard federal minimum wage is what we call a tip credit.  Further, the employer is prohibited from using an employee’s tips, whether or not it has taken a tip credit, except as a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool. This amendment results in major changes to the existing tip-credit-notice regulations, specifically in regards to the ownership of employee tips, pooling tip arrangements, and required communications to employees.  The tip credit provision was originally created through the 1966 amendments to the Fair Labor Standards Act, and specifically permitted employers to credit a portion of their employees’ tips against their minimum wage obligations.  Under the Fair Labor Standards Act, employers are allowed to pay their servers below minimum wage as long as their tipped employees receive tips that amount to at least $30 a month.

The sudden change to tip credit requirements caught the restaurant industry by surprise. The major industry trade groups requested a 90 day delay for implementing the new rules, but the DOL did not acquiesce to this appeal.  They felt that the amendment came at an inopportune time due to the weak economy paired with rising commodity costs.  The National Restaurant Association, The Council of State Restaurants, and the National Federation of Independent Business sued the Department of Labor in June 2011 because the agency did not allow restaurants to comment before the provision went into effect.  The NRA also noted that the DOL only gave restaurants 30 days to communicate the changes to employees comply with the new regulations.  The DOL counters that there was plenty of forewarning through the 2008 release of original regulations, and the agency felt that the amendment needed to be put in place as soon as possible due to the sheer number of alleged violations and lawsuits.

Strategic HR, inc. has the answers to all of your tough Benefits and Compensation related questions. Whether you need a job analysis of your positions or need to update (or write) job descriptions, strategic HR, inc. can do the job. Please visit our Benefits & Compensation page for more information.

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Personality Tests Prior to Interview

Question:

Is it okay to ask candidates to take an on-line personality profile before anyone from the company talks to the candidate? Only those candidates who “pass” the profile will move forward in the process. I’m concerned that using such a test to screen candidates could be legally questionable.

Answer:

Generally speaking it is not recommended to conduct a personality assessment as the first step in the recruitment process, as personality fit is only one factor in the hiring equation. Any assessment used for hiring purposes needs to rely on the bona fide occupational qualifications (BFOQ) of the position. Additionally, the test itself needs to be proven reliable and valid for testing those BFOQs. There are many pre-employment tests sold that are loaded with inappropriate questions – questions not necessarily linked to the necessities of the job. If the assessment can be shown to be related to the skill needs of the position and it is administered to all the applicants equally for that position then it should be okay. But when talking about personality assessments, that’s another matter.

While many large corporations use such tests as part of their initial on-line screening, if the test has not been vetted and causes a disparate impact (i.e. has a detrimental impact on one group of applicants versus another group), this can cause major legal headaches. What happens, for example, if the test results are deemed voided? Should the employer not rely on them at all? If the employer does not rely on them, what about the applicants that did well on the test – do they have a possible legal claim along with the applicants who did not get hired? These instances often give rise to very expensive lawsuits with lots of publicity – the New Haven firefighter case decided in 2009 by the Supreme Court is a great example.

If a personality test “must” be done, it would be best to do so only after hire, as a tool to help guide management in building a relationship with the new employee, or it should only be administered to final candidates as a tool to help distinguish between candidates; not select a final candidate. A personality profile isn’t something that should be used as a tool for hire, unless it can be shown to be job related. And it should never be THE tool to determine if a candidate is hired or not, but one of many tools.

Regarding the legal risk associated with using such a test, this is a very complicated legal area, and can easily give rise to litigation. You should check with your legal counsel before using such a test.

Strategic HR, inc. understands the complexity and pitfalls of hiring. From applicants to candidates to prospects, we know the ins and outs of sourcing, screening and selecting your next new employee. For more information on how we can help you fill your job openings efficiently and cost effectively, visit our Recruitment page.

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Concerned We Aren’t Paying Employees Properly

Question:

I have been reading up on the Fair Labor Standards Act and I am concerned that our company has not been paying some of our employees properly. I’m afraid to call the Department of Labor, but also afraid they will show up on our doorstep. Help! What should we do to fix this problem?

Answer:

Realizing that you have a problem is the first step towards fixing it. With the recent focus by the DOL on enforcement, you are smart to be pro-active in your efforts to identify and correct any issues. The process for correcting errors in employee pay is called “Self Reporting” and is actually not as daunting as you might think. You don’t actually have to contact the DOL and ‘fess up’. The most important action you can take is to document, document, document. The most common types of mistakes may be not properly paying overtime, utilizing comp time, and improper deductions. The statute of limitations is two years.

Conduct an audit of your employees to ensure that their exemption status is classified appropriately. For employees that you have identified as mis-classified, those that have not been properly paid overtime, or made improper deductions, the next step is to calculate what they should have been paid in terms of time worked and/or overtime. Compare this to the actual hours compensated, and calculate the difference accordingly. This is the amount to be paid to the employee. Again, the key is to document. In the event the DOL should come in and audit, you have records to prove that you identified the error, and what you did to correct it.

FMLA, the ADAAA and other labor laws can be difficult to understand, let alone enforce. That’s where strategic HR, inc. has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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Poor Performance Review Prompts Legal Action

Question:

My employee sent me a scathing email in response to a performance evaluation I just gave her. She has contacted her attorney and has threatened to quit. At this point I just want to fire her – how should I respond?

Answer:

As tempting as it may be to terminate this employee immediately, it is critical that you keep a level head and do your due diligence. You don’t want to let the fact that the employee has called an attorney force you into a hasty decision you may regret.

A less than stellar performance evaluation is never easy to deal with for either party, but also should never be a surprise to the employee. Whether an attorney is involved or not, make sure you have all your documentation in place to support your evaluation and any further actions. View your documentation with a critical eye – pretend you are a judge and jury. Hopefully your supervisors are well trained in documentation and you have a trail detailing the employee’s performance history and how it has been addressed.

This is where that ongoing feedback (and documentation) is invaluable. Is there anything else you can and/or should do to help the employee be successful? Is a Performance Improvement Plan warranted? If you and your managers have done due diligence, your actions should hold up in court. Any employee can contact an attorney for any reason. Our role as HR professionals is to always protect our companies’ best interests, on the assumption that employees will contact their attorney, and be ready for any situation.

Having good employee relations is key to effectively managing (and retaining) your workforce. Employees want to feel valued and may not perform up to standards, or stick around very long, if they don’t feel they are needed. Strategic HR, inc. understands the value of your workforce and having solid Employee Relations. We’ve helped companies create reward and recognition programs and have coached managers on providing support and mentoring to their employees. Learn how we can help you with your Employee Relations needs by visiting our Employee Relations page.

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What is the P3 Initiative?

Question:

What is the Department of Labor’s “P3 Initiative”?

Answer:

The purpose of the Department of Labor’s (DOL) P3 Initiative, introduced in 2011, was to require employers to “take full ownership” over their adherence to DOL requirements and promote openness and transparency when it comes to the health and safety of employees. The goal of the program is to have employers “find and fix” violations, ensuring compliance with safety, wage and anti-discrimination laws, before an investigator comes into the workplace. In other words, the burden is on employers to obey the law, not on the DOL to “catch” employers in a violation.

P3 refers to Plan / Prevent / Protect and applies to those employers who are covered under the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Office of Federal Contract Compliance Programs (OFCCP) and/or the Employee Benefits Security Administration (EBSA). P3 requires obligated employers to:

  • Plan – develop written plans for identifying and fixing violations
  • Prevent – implement the plans and create processes to implement the overall  strategy
  • Protect – test the processes regularly with designated compliance employees to ensure they are working

It is expected that the finer details of the P3 Initiative will be announced sometime in 2013. Stay tuned.

Is your head spinning? Too many new Labor Law to keep up with? Let strategic HR, inc. assist you with navigating the employment law minefield. We can help you with any of your Legal Compliance needs. Please visit our Compliance page for more information or feel free to call us if you have a specific question or need.

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Am I Required to Offer COBRA?

Question:

How do I determine if I have to offer COBRA to our employees for their health insurance? We are ‘on the bubble’ with 21 employees this year, but some are part time. 

Answer:

According to the Department of Labor, group health plans for employers with 20 or more employees on more than 50 percent of its typical business days in the previous calendar year are subject to COBRA. Both full and part-time employees are counted to determine whether a plan is subject to COBRA. Each part-time employee counts as a fraction of an employee, with the fraction equal to the number of hours that the part-time employee worked divided by the hours an employee must work to be considered full-time.

Providing adequate Benefits and Compensation for your employees is key to the recruitment and retention of a well performing workforce, and having the right policies in place can make or break a company. Strategic HR, inc. understands this critical need and can help you structure your benefit and compensation system to meet today’s competitive market. Please visit our Benefits and Compensation page for more information on how we can help get you competitive today.

 

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Employee Accomodation under the ADA

Question:

Are employers required under the Americans with Disabilities Act to accommodate someone who can’t perform essential job functions? What if the employer provides an accommodation and the employee still has problems doing the job?

Answer:

In many cases, YES! The Americans with Disabilities Act (ADA) requires employers to accommodate someone with a disability unless that accommodation would cause what the EEOC defines as “undue hardship” for an employer. These accommodations may vary significantly in scope and whether or not it would cause an “undue hardship” depends on the size of the company and the cost of the accommodation, just to name a few of the factors. So even if the applicant or current employee cannot perform the essential job functions, accommodations may need to be made.

Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your sticky legal compliance needs. Please visit our Compliance page for more information on any of these services.

 

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Voluntary Classification Settlement Program

Question:

What is the Voluntary Classification Settlement Program?

Answer:

Launched in 2011 by the IRS, the Voluntary Classifcation Settlement Program (CVSP) is an initiative to increase tax compliance and reduce the hassle of voluntarily reclassifying workers as employees within a company for federal employment tax purposes. Those accepted into the program obtain relief from federal payroll taxes owed, avoiding penalties and interest, and will not be audited on payroll taxes related to the affected workers, although they must pay a fee based on wages paid each eligible employee for the past year.

To apply for this program, an application should be filed at least 60 days prior to the date the employer wants to begin treating its workers as employees. But before you choose to participate in this program, ensure that you are aware of and have adhered to the prerequisites that allow you to take advantage of the streamlined process.

To be eligible, an applicant must:

  • Consistently have treated workers in the past as non-employees,
  • Have filed Forms 1099 for its workers for the previous three years,
  • Not currently be under audit by the IRS, by the DOL or a state agency concerning the classification of these workers.

Be sure that your HR Department and company leadership fully understand the impact of reclassifying your workers as employees before doing so. You will need to consider if there are any additional issues to address, for example, does reclassifying workers impact the benefits you will now need to offer these ‘new’ employees?

Strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by fielding your questions and offering resources to help you identify and mitigate compliance issues. Visit our Compliance page to learn more about our auditing services which can help you identify trouble spots in your HR function.

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Impact Of Miscarriage On Leave

Question:

We had an employee request, and was granted, maternity leave under our leave policy.  After the leave was granted, she had a miscarriage. How should this impact the maternity leave and how long should we allow her to be out?

Answer:

From a legal perspective, maternity leave falls under the Family Medical Leave Act (FMLA), which allows eligible employees 12 weeks of job protected leave for the birth, adoption or placement of a child, the employee’s own serious health condition, or to care for a family member with a serious health condition. The above circumstance would most likely qualify as leave taken for the employee’s own serious health condition. To be covered, you will need to have the employee obtain certification from her health care provider. The length of time she takes for leave, up to the 12 weeks, may largely be determined by when her doctor releases her. Other benefit programs that may come into play in this situation could be short term disability and your Employee Assistance Plan, if you have either of these in place.

Be sure to review your Maternity Leave Policy to make sure it is in compliance with FMLA regulations. The Department of Labor (www.dol.gov) offers guidance for managing FMLA claims and our team at strategic HR inc. can also assist you with this and other compliance questions.

One of the stickiest aspects of human resources management is Employee Relations. Are you having difficulties in your company that stem from employee-employer related issues? Strategic HR, inc. has years of experience in employment relations and can help coach you through challenging employee relation issues. Visit our Employee Relations page to learn how we can help you resolve some of your toughest ER problems.

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Preparing for Health Care Reform

Question:

The Health Care Reform Buzz Is Growing. Are You Prepared?

Answer:

The buzz about Health Care Reform is starting to grow, and your employees are paying attention.

Time magazine’s “Bitter Pill: Why Medical Bills Are Killing Us” is about to become its best-selling cover issue in two years. Time even summarized the challenges in a terrific infographic, for those who don’t have the attention span to read the 35-page article. CNN’s broadcast of the award-winning documentary, “Escape Fire: The Fight to Rescue American Healthcare,” was followed by a 30-minute discussion moderated by Dr. Sanjay Gupta on how Americans can cut through the red tape to save money and increase their access to health care.

Media coverage will continue to grow as we near the 2014 effective date for individual mandates, exchanges and so forth. On one hand, the increased coverage is a good thing. It increases awareness and spurs important conversations. On the other hand, mixed messages from various sources can, and will be, confusing.

It’s important that you prepare now. You’ll need to help your employees to navigate through the information and understand how the upcoming changes will specifically impact them. The following are a few suggestions to consider:

Dedicate a portion of your benefits website to health care reform so employees have a centralized spot to access accurate information. To build awareness, promote the site throughout the year in all the benefits communications you post or distribute.

  • Create easy-to-understand definitions for common terms such as exchanges, individual mandate, affordable coverage, essential health benefits and premium subsidies.
  • Post frequently asked questions and update them as new decisions are made or guidelines are issued. You’ll also need to frequently update the FAQs in response to employees’ questions as they near the enrollment process.
  • Be VERY clear about your company’s coverage options for 2014 and the choices employees can make. For example, will you allow employees to qualify for a subsidy or not? If not, better tell them as soon as possible to avoid misunderstandings. Disgruntled employees can do a lot of damage to the image of your benefits program.

Unlike past years when health care reform changes were pretty minimal, 2014 will be a big year. You can’t wait until annual enrollment to communicate your company’s decisions. Start now to create your communication tools and resources, then add materials throughout the year. The important thing is to be clear, concise and straightforward. If you don’t have all the information or decisions at this point, say so. But promise you will update the site as information becomes available.

There’s no doubt that the health care buzz will be loud and confusing at times. But it will also be your opportunity to stand out as a reliable and trusted resource for your employees.

A special thanks to Elizabeth Borton, President of Write On Target, for sharing her expertise with us.  Sign-up on her website at to receive future communication blogs at www.writetarget.com. Or, you can contact her with questions at EBorton@WriteTarget.com or  937.436.4565 at extension 28.

Nothing is more important to your employees than their Benefits. Make sure your employees get the information they need in a timely, concise and complete manner by communicating effectively. Strategic HR, inc. has years of experience writing for a targeted audience and creating communication plans that aim to accommodate a variety of communication styles. Visit our Communications page to learn how we can assist you with various communication-based projects.

Wheel - Recordkeeping

Performance Review Copies

Question:

Am I required to provide my employees with a copy of their performance reviews?

Answer:

We consider it a best practice to give employees a copy of their performance review since it is being discussed with them, it can affect your/management’s decisions regarding their compensation, and it is a signed document. However, no law mandates that you provide it to the employee.  See below for an excerpt from Nolo on State Laws on Access to your Personnel File:

While many states now have some type of law regulating personnel files…most of these laws control not the content of the files, but, rather:

Whether and how employees and former employees can get access to their personnel files,

• Whether employees are entitled to copies of the documents in them, and

• How employees can contest and correct erroneous information in their files.

In some states, [employees] have a right to see those files only if they are related to a lawsuit [the employee] filed against [his/her] employer or former employer. Even then, [he/she] might be in for a legal battle over what portions of the files are relevant to the case. But, in many states, [employees] have the right to see the contents of [their] personnel file—or at least some of the documents in it—without filing a lawsuit.

In Ohio, for example, “there is no law in Ohio that requires an employer to grant an employee access to his or her personnel file. There are, however, two key exceptions: medical records and wage and hour records” (Source).

Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

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How do I handle missing I-9 Forms?

Question:

My company recently conducted an I-9 audit and found that we are missing approximately a dozen I-9 forms. I don’t know if they were accidentally purged, filed incorrectly, or never completed. Can we ask the affected employees to fill out another I-9? If so, do we ask them to backdate it or use the current date?

Answer:

There are two types of I-9 errors: (1) technical and procedural errors and (2) substantive errors. Technical and procedural errors can be corrected. An example is forgetting to record a document title, which can easily be fixed – and fines are discretionary. A substantive error cannot be corrected. If audited, your company will likely face a fine if the statute of limitations has not run. Examples of substantive errors include failing to complete I-9 paperwork or not signing or dating Section 2 of the form.

Substantive Errors
In a recent decision, the U.S. Department of Justice’s Chief Administrative Hearing Office noted the difference between technical/procedural violations and substantive errors. The agency explained that the Immigration and Nationality Act (INA) was intended to relieve employers of liability for certain minor and unintentional violations but wouldn’t act as a shield to avoid its basic requirements. When an I-9 form isn’t properly kept or completed, the violation is considered substantive and therefore uncorrectable.

If an I-9 form is lost, destroyed, or not maintained as required by the INA’s retention requirements, the appropriate action is to come into compliance with the law as quickly as possible. Once identified, a missing I-9 form should be completed by the employer and the affected employee immediately. This won’t correct the error, but it does demonstrate a good-faith effort to comply with the law, which may be considered if penalties are assessed.

Penalties
Failure to comply with I-9 verification and document retention requirements could result in a penalty. The minimum penalty for a first offense is $110; the maximum penalty is $1,100. Penalties are assessed based on several factors, including:

  1. The size of the employer
  2. Any good-faith efforts undertaken by the employer
  3. The seriousness of the violation
  4. Whether the individual involved is an unauthorized alien
  5. Any history of previous violations by the employer

The statute doesn’t require that equal weight be given to each factor, nor does it rule out consideration of additional factors.

It’s important to never backdate an I-9 form. Employers that make false statements or attestations to satisfy the employment eligibility verification requirements may be fined, imprisoned for up to five years, or both (and could be higher in certain fraud cases). If an investigation reveals that an individual knowingly committed or participated in acts relating to document fraud, additional fines may be imposed. For a first offense, the fine starts at $375 and can go as high as $3,200 for each fraudulent document that is the subject of the violation. For subsequent offenses, the fines range from $3,200 to $6,500 for each fraudulent document that is the subject of the violation. “Fraud fines” are imposed in addition to penalties for substantive errors.

Bottom line…always ensure compliance within the appropriate three-day verification period. While substantive violations are not correctable, every effort should be made to ensure good-faith compliance when a discrepancy is uncovered. If a discrepancy is discovered, you are at risk of incurring substantial fines in the event of an audit. Trying to correct an error after the fact by backdating or tampering with incomplete or missing I-9’s will only worsen the problem.

Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important and can get you into hot water if not done properly. Keeping appropriate recruiting and hiring documentation is vital to proving, if needed, your employment processes are compliant. Strategic HR, inc. has a great online tool that’s affordable, easily downloaded and ready for immediate use. Our Recordkeeping desktop reference has everything you need to see at-a-glance recordkeeping requiements mandated by law. Visit our Desktop Reference page to learn more.

 

Important Dates in 2013

Question:

What are some of the key and important dates that I need to remember in 2013?

Answer:

January 2013

  • Jan 1: New Year’s Day
  • Jan 21: Martin Luther King Jr. Day
  • Jan 31: W-2 Distribution Deadline

February 2013

  • Feb 1: OSHA 300-A Posting Period Begins
  • Feb 18: President’s Day

March 2013

  • Mar 1: Employee Appreciation Day
  • Mar 10: Daylight Savings (At 2:00 AM turn forward 1 hour to 3:00 AM)

April 2013

  • Apr 1: H-1B Filing Season Begins
  • Apr 15: Federal Tax Return and Extensions Deadline
  • Apr 17: Ohio & Kentucky State Tax Return and Extensions Deadline
  • Apr 21: Administrative Professionals Week
  • Apr 25: Take Your Children to Work Day
  • Apr 30: Defined Benefit Plan Annual Funding Notice is Due
  • Apr 30: OSHA 300-A Posting Period Ends

May 2013

  • May 1: Employee Health and Fitness Month
  • May 18: Armed Forces Day
  • May 27: Memorial Day

June 2013

  • Jun 10: Men’s Health Week

July 2013

  • Jul 4: United States of America Celebrates Independence Day
  • Jul 26: ADA 1990 Anniversary

September 2013

  • Sept 2: Labor Day
  • Sept 30: VETS 100/100A Due
  • Sept 30: EEO-1 Due

October 2013

  • Oct 1: National Disability Employment Awareness Month
  • Oct 14: Columbus Day
  • Oct 15: Medicare Part D Annual Notice Due
  • Oct 15: Federal and State (OH, KY) Tax Return Extension Filing Due Date
  • Oct 16: National Boss Day

November 2013

  • Nov 3: Daylight Savings Time Ends (At 2:00 AM turn backward 1 hour to 1:00 AM)
  • Nov 5: Election Day
  • Nov 11: Veterans Day
  • Nov 28: Thanksgiving Day

December 2013

  • Dec 25: Christmas

In addition to these dates, be sure to check out our website for an up-to-date list of other important HR-related events throughout the year.

Strategic HR, inc. knows that keeping abreast of legal compliance issues and deadlines can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues and by making sure you are informed of changes and reacting in a timely manner. Our HR Audit will help your organization identify trouble spots in your HR function. Visit our HR Audit page to learn more about this helpful service.

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Employment Posters

Question:

What Federal and State employment posters must I have (specifically for Kentucky and Ohio) in order to be in compliance?

Answer:

There are different Federal and State regulations when it come to posting required information for your employees. To be in compliance you can either download and print the posters for free or you may wish to purchase a laminated version from a poster compliance company for a charge. Using either version you will meet the compliance requirements as long as you have them posted where employees can view them. Below are some links listing requirements for Federal and State (Ohio and Kentucky) posters.

Some communications are not only helpful for employees, but are required by law. Don’t get caught without the proper notices and communication required for your employees. Ask strategic HR, inc. to help you audit your notices and documentation. Visit our Communications page to learn more.

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FMLA Expiration and COBRA

Question:

We have an employee who is on FMLA to receive an organ donation and the leave is expiring soon. At what point do we offer the employee COBRA, and for how long?

Answer:

It is generally required by employers to offer health care coverage under COBRA law when the employee is:

  • No longer eligible to receive benefits of employer-provided group health plan
  • No longer protected by federal or state leave laws

It is common for employee coverage eligibility to expire after 12 weeks of leave under FMLA and any additional leave where the employer is reasonably accommodating the employee under the Americans with Disabilities Act.

Strategic HR, inc. has the answers to all of your tough Benefits and Compensation related questions. Whether you need an analysis of your current benefit offerings or are looking to create a cost-effective recognition and rewards program, strategic HR, inc. can do the job. Please visit our Benefits & Compensation page for more information.

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Taking leave to care for adult children – FMLA Ruling

Question:

One of our employees has requested FMLA time off to care for their child who is mentally disabled but is of an independent age.  Do we need to allow the time off under FMLA?

Answer:

On January 14, 2013 the Wage and Hour Division of the Department of Labor issued guidance on the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). In that interpretation they define a son or daughter to be “individuals 18 years of age or older and incapable of self-care because of a mental or physical disability”.  The individual being cared for must meet four requirements in addition to the other requirements the employee must meet under FMLA. The son/daughter needing care must:

  • Have a mental or physical disability as defined under the ADA and ADAAA,
  • Be unable to care for himself because of the disability,
  • Have a serious health condition,
  • Need of care because of the serious health condition.

It is important to note that the age of the onset of the disability (for the dependent) is irrelevant in determining if they qualify for FMLA care. 

Too many new Labor Law changes to keep up with? Let strategic HR, inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Compliance page for more information or call us if you have a specific question or need.

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Asking Candidates About Felonies

Question:

Am I allowed to ask a candidate about previous felonies during a pre-screen or job interview?

Answer:

Inquiries about convictions may be made if the convictions reasonably relate to job qualifications and if the conviction or release from prison occurred within the last 10 years. This restriction does not apply to law enforcement agencies and state agencies, school districts, and businesses or other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults.

Employers should use caution, especially when considering arrest records. The federal Equal Employment Opportunity Commission (EEOC) takes the position that it is a violation of Title VII of the federal Civil Rights Act to base an employment decision solely on an applicant’s arrest record. According to the EEOC, employers may rely on a record of a criminal conviction only if it is related to the job.

Hiring is more difficult than it can seem. Strategic HR, inc. knows that asking the right questions can help you find the best talent, and asking the wrong questions can leave you with loads of trouble. That’s why we have experts to help you with your recruitment. And we have resources to help you with functions such as Recruitment – take our Legal Recruiting Questions desktop reference for example. This handy reference provides your hiring managers with the right (and wrong) questions to ask in an interview – all in one useful document. Visit our Recruitment page to learn more.

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Can I backdate FMLA paperwork?

Question:

Can I backdate FMLA paperwork to the date at which the employee went on Workers’ Compensation?

Answer:

In a word, “no” – FMLA cannot be backdated. That’s why it is so critical that HR is on top of any types of absences that may qualify for FMLA. If an injury that falls under Workers’ Compensation also qualifies as a “serious medical condition” under the Family and Medical Leave Act, any time missed can be counted against the 12 week leave allotment an FMLA qualified employee is entitled to receive. When such an event occurs, send the appropriate notifications (found on www.dol.gov), and make sure you document that you have done so.  Then follow up appropriately for the certifications. The clock does not start ticking on FMLA until the notifications have been sent – whether it is immediately after the incident, or two months later. Keep in mind, if an employee returns to work on light duty, from a Workers’ Comp injury, that is no longer time counted against Family Medical Leave.

The world of employee leave is a complex one, often involving Family Medical Leave, Workers’ Compensation and the Americans with Disabilities Act. Many times, the different types of leaves overlap. Make sure you consider all appropriate legislation when an employee is absent from work before taking any type of adverse employment action.

FMLA, the ADAAA and other labor laws can be difficult to interpret, let alone enforce. That’s where strategic HR, inc. has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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How To Conduct A Safety Audit

Question:

I have a safety committee comprised of all new members. We need to conduct a safety audit of our facility. How should we structure our audit?

Answer:

The most important part of a safety and health audit is to make some specific decisions early on. Questions must be answered such as:

  1. Who is going to do the audit? Are you going to do it internally or involve an external party? If internal, who is involved specifically – HR? A team of safety and healthy experts in a committee?
  2. What are you actually going to audit – a part of safety and health in the organization or all aspects? If you are interested in doing a full audit, it is best to pick a specific area to work on – one at a time. Pick a monthly task to audit specifically (e.g. hazardous communication standard, lock out/tag out, emergency evacuation, etc.) and focus on that as an audit topic each month. Focusing on one topic will allow you to dig deeply into the standard and ensure compliance at all levels.

Once you are ready to audit and you know who and what is going to be a part of the audit, you need a clear checklist or questionnaire to use to audit each of the various aspects. In general, the audit should include the following items:

  • Determine what requirements you are supposed to meet – look at all areas of legislations including state and federal.
  • Assess whether or not you are meeting those legal requirements.
  • Review your documents to ensure you have good documentation as well as best practices in place in recordkeeping.
  • Identify any areas of risk in the workplace and determine how the organization attempts to minimize those risks.
  • Identify strengths and weaknesses in your safety procedures.
  • Recommend areas of improvements necessary for compliance and best practices.
  • Document the implementation of those recommendations to ensure they do not become a legal liability in the future.

Once you have these pieces in place you are ready to audit – good luck!

Do you worry about doing what is right for your company and right for your employees while being legally compliant? Strategic HR, inc. understands your concerns with the well-being of your employees and the legal compliance of your organization. Conducting an audit of your Health and Safety function is a key component to making sure you are compliant. Let us help you with your audit using our tried and true practices. Please visit our Health, Safety & Security page or Legal Compliance page for more information on any of these services.

 

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FCRA Changes For 2013

Question:

Can you explain the FCRA changes that will be effective January 1, 2013?

Answer: 

The FCRA (Federal Credit Reporting Act) is a “federal law that imposes requirements on employers who use third party Consumer Reporting Agencies (CRA’s) to obtain consumer reports and investigative consumer reports on prospective or current employees.”

  • Consumer Reports refer to information on current/prospective employee background checks, reference checks and credit checks.
  • Investigative Consumer Reports are a form of a consumer report where information regarding character, general reputation, personal characteristics, etc. is obtained through personal interviews.

The EEOC recently issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions” which is meant to provide restrictions on criminal background checks by employers. Also new in 2013, enforcement of the FCRA has been give to a newly created department, the Consumer Financial Protection Bureau (CFPB), and is no longer enforced by the Federal Trade Commission.  These changes take place and are enforceable effective January 1, 2013.

As part of the change, the three documents that are to be used when obtaining consumer information have been updated. These are:

Be sure you have the latest versions of these documents in 2013 and be sure to check your state laws for any additional laws governing consumer reports.

Strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function. Check out our Legal Compliance page to learn more.