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How Can We Support a Grieving Employee?
HR Question:
One of our team members has sadly lost a loved one recently. We want to show our love and support, but don’t want to overstep or upset this individual in this tough time. How can we support a grieving employee?
HR Answer:
Everyone experiences grief at some point in their life, and yet for being such a common experience, it’s also one that few of us are fully equipped to navigate when it comes. In part, this is because grief is such an overwhelming and horrible experience. Nothing can prepare you for it. You just have to go through it and get through it. Grief is also a unique experience for each person. Everyone has their own path through its stages, and what helped one person work through their grief may not help another.
To complicate matters, our fast-paced, always-on society isn’t set up to allow time for grief. We’re often pressured to keep our grief private and keep it short. Grief takes us away from our obligations, and our obligations may be impatient for us to return. Households need to be managed. Work needs to be done. Bills need to be paid. Life goes on.
No one can make the grief easy, but there are ways to be supportive and to give people the time and space they need to process their emotions and find healing. Below are some ways that employers and coworkers can support a grieving employee:
Document workflows
Upon hearing of a loved one’s passing, an employee may need to drop everything and leave work immediately, and, in some circumstances, the employee may not be reachable or be able to update you on the status of all their work assignments and projects. With clear, documented workflows set up ahead of time, you can quickly reassign work, and the employee doesn’t need to worry about any urgent or time-sensitive work they left behind. Having documented workflows is also (and more commonly) useful when an employee quits without giving sufficient notice or is sick or injured themselves.
Educate managers and teammates about the grieving process
Grief can take many forms and look different from day to day. Managers and coworkers of a grieving employee may not know what to say (or not to say) or how they should act. Bringing in a grief counselor to talk with employees and educate them about grief can help them support a grieving employee or team member. Grief counseling is also a good idea if employees are grieving the loss of a colleague.
Provide bereavement leave and flexibility upon return
In many cases, people who have lost a close family member have to put their grief on hold so they can make all the calls and decisions that have to be made when someone dies. They may have to make arrangements for the funeral, inform family, friends, schools, and others about the death, and give extra attention to children or other people in the home. It’s a lot. Employers can be a big help here by offering bereavement leave and flexibility when the employee returns.
In the United States, the typical bereavement leave policy is three to seven days, which is rarely enough time to hold a funeral or memorial service, let alone work through the initial pain of a loss. Some companies offer more time off to support a grieving employee. The policy at Facebook, for example, is 20 days of paid time off after the death of an immediate family member.
Of course, providing either paid or unpaid time off is a huge expense, and not every employer can make it work, however much they would like to. Our general recommendation is to offer as much time as you can and communicate with the employee about how much time they feel they need. Some employees may want to come back sooner rather than later because work helps get their minds off the pain. Others may ask for longer because they need more time to heal before they’re able to be fully productive at work.
Understand, too, that grieving employees will have bad days, and grief can come on suddenly, like a ton of bricks. Grieving employees may need extra breaks or need to take a half-day unexpectedly. Letting employees know that they have flexibility after they return can be a big relief.
Offer mental health care
It’s likely that grieving employees will need therapy to help them process the loss and work through their emotions, but regular sessions with a therapist can quickly become costly. Providing health insurance that covers mental health care can help ease this financial burden. An Employee Assistance Program may also be beneficial.
What happens if one of your employees passes away?
Download our Guide to Handling the Death of an Employee and be prepared for the unthinkable.
Reach out to offer support, but be mindful of decision fatigue
People experiencing a loss need support, but they may not know what support they need or be able to answer if asked. Decision fatigue is very common immediately after a death. Even a question like, “What can we bring over for dinner?” can be stressful to answer.
One option here is to simply let a grieving employee know that you’re there for them and that they can reach out if they need anything. Another option is to make decisions yourself about what support you give. For example, if you want to provide the employee with a gift card to a restaurant, you could select the restaurant yourself instead of asking the employee which restaurant they’d prefer (just be sure to take the possibility of food allergies into consideration). Both of these options let the employee know that you care about them without adding to the decisions they have to make and the stress they’re feeling.
Be aware of triggers and PTSD
If the death was particularly sudden, unexpected, or traumatic, the employee may at times unexpectedly reexperience the horror, panic, stress, and fear they felt at the time of the event. In some cases, the employee may be diagnosed with post-traumatic stress disorder. If any of this occurs, give the employee time and space to process their emotions.
Also, don’t be hard on yourself if something you say triggers a response. There’s no way to anticipate all of the words and images that could be triggering, and even if you know the details of the death, it’s simply not reasonable to expect that you’ll remember those details in every moment that you’re speaking. Don’t worry if you say the “wrong thing.” The important thing is to be aware that a grieving employee may feel the need to step away and to show understanding and compassion in those moments.
Special thanks to our HR Support Center for providing this edition of our HR Question of the Week.
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Do We Have to Provide Employees Time Off to Vote?
HR Question:
We received a request from an employee for time off to vote. My state doesn’t require voting leave, but this employee works in a different state, and we have employees located across the country. What do I need to do here?
HR Answer:
If an employee of yours works in a state with a voting leave law, you will need to comply with that law. Most states require that employers provide at least a few hours of employee time off to vote, and many of those states require some or all of that time to be paid. In New York, for example, all registered voters are allowed to take off as much time as is necessary to enable them to vote and are entitled to be paid for up to three of those hours. You’ll also want to check any applicable voting leave laws for notice requirements and for specifications on when during an employee’s shift the time off should be given. You can find all this information on the HR Support Center by entering “voting leave” in the search bar. Workplace Fairness also has an online interactive tool to allow you to look up voting laws by state.
To keep things simple and fair, you might consider implementing a single company policy that meets or exceeds all applicable state requirements. That way there’s no confusion about what your policy is, employees in states without leave requirements won’t feel like they’re being excluded, and everyone in your company will have the opportunity to vote. Some employers even go the extra mile by cancelling all meetings on election day or making that day a paid holiday.
Thank you to our HR Support Center for providing the response to this edition of our HR Question of the Week.
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Can I Store My I-9 Forms Electronically?
HR Question:
I have heard of other employers storing all of their I-9’s electronically, rather than in paper form. Is that acceptable? Is there anything I need to know before moving to store my I-9 Forms electronically?
HR Answer:
Yes, many employers are moving to the electronic completion and storage of their employees’ I-9 Forms. According to U.S. Citizenship and Immigration Services, you may maintain the forms either electronically or on paper, with a few requirements to keep in mind.
Storing Form I-9s Electronically
If you are storing them offsite, you must be able to produce the documents within 3 days of the request from an auditor. If you decide to maintain your records electronically, you have the option of using an online payroll provider which should allow the employees to complete the form online and store it. Alternatively, you can have employees complete the hard copy paper form and then scan and upload the original signed form. Either option is an acceptable alternative for electronic storage. The paper form can then be destroyed once it has been properly stored electronically.
How to Manage I-9 Verification Documents
Regarding the documents that are provided as “proof” for the I-9, employers are not required to create or attach photocopies of documentation submitted to satisfy the Form I-9 requirements during the employment eligibility verification process, but the practice is permissible. If you choose to make photocopies of the documents, make sure that you do it for ALL employees to avoid any potential claims of discrimination.
Requirements of Electronic Storage Systems
If you are using an electronic system, U.S. Citizenship and Immigration Services (USCIS) require you to make sure the system you are using can meet the following requirements:
- It has controls that ensure the system’s integrity, accuracy, and reliability;
- It has controls that can prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature if used;
- You have an inspection and quality assurance program in place that regularly evaluates the system and includes periodic checks of electronically stored Form I-9’s, including the electronic signature if used;
- You have an indexing system that allows users to identify and retrieve records maintained in the system; and
- The system has the ability to reproduce legible and readable paper copies.
In addition, you are required to document the process and procedures used for collecting and maintaining the documents. You can find additional details on the requirements for storing I-9’s electronically on the U.S. Citizenship and Immigration Services website.
Finally, keep in mind that you must have a secure IT system in place. The system should be able to audit who accessed the files and/or edited them, as well as ensure that only authorized individuals have access to the records. You must also have a system in place that ensures the information is securely backed up in the event of a system crash.
How Long You Are Required to Store I-9s
An employer must keep the original Form I-9 for all current employees for as long as they are employed. After an employee terminates employment, the original Form I-9 must be on file for EITHER: three (3) years after the date of hire or one (1) year after employment is terminated – whichever is later. For example:
Scenario A: If an employee is terminated after only 6 weeks on the job, their Form I-9 must be kept for three years after the hire date.
Scenario B: If an employee terminates after 5 years of employment, their Form I-9 must be kept for one year after the date of termination.
Here’s an easy way to calculate the date of Form I-9 retention:
- If an employee worked fewer than three years (Like scenario A above): Add 3 years to the date of hire
- If an employee worked more than three years (Like scenario B above): Add 1 year to the date of termination
- Following the above calculations, use the later of the two dates as the retention date.
Ensuring Storage Safeguards
Storing your I-9’s electronically can be a wonderful solution for these documents – just be sure you have a process in place with the appropriate safeguards and systems. The USCIS warns us that if the records cannot be retrieved during an audit, even if there is proof of a system crash, you will be in violation.
Thanks to Patti Dunham, MBA, MA, SPHR, SHRM-SCP for contributing this edition of our HR Question of the Week!
Strategic HR knows that keeping abreast of HR 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 HR Compliance and Recordkeeping page to learn about our auditing services which can help you identify trouble spots in your HR function.
How to Handle Political Talk During the Work Day
HR Question:
Since it’s an election year (not to mention one during an unprecedented pandemic), the conversations between my employees are becoming increasingly political. How do I handle this political talk either in the office or with remote workers during office hours?
HR Answer:
It’s natural that conversations amongst team members can quickly turn political – with it being a presidential election year, paired with heightened communication from our local & state leaders due to the pandemic, political topics are at the forefront of many people’s minds! Whether your employees are in your physical office space or communicating during office hours while working remotely, it is likely that politics and the election will become a topic of conversation as employees interact. As these conversations can include polarizing opinions, it is smart for employers to have a strategy for handling political talk at work.
Political discussions in the workplace can have both a positive and negative impact. Political expression in the workplace can contribute to a culture that values diversity of thought and the overall well-being of employees. Friendly political talk can be a team-building skill and a morale-booster, especially when it’s done with compassion and a commitment to respecting differing viewpoints. However, if the political chatter doesn’t come from a place of mutual respect and an interest to learn from different viewpoints, or if it seems to be the only topic of conversation, it can create a negative and unwelcoming atmosphere. If left unaddressed, this could lead to lingering resentment that can affect work relationships and effectiveness. Or worse, some political discussion may lead to hostile comments surrounding gender, race or religious statements that could lead to harassment and discrimination claims.
Should I ban political discussions at work?
It’s probably not realistic to mandate that politics not be discussed at work. Particularly given all that’s going on in our country and the world, it can be hard to avoid the topic – even in a general sense. For example, it’s natural that team members may want to discuss local, state, or federal regulations surrounding social distancing during the COVID-19 pandemic. Imagine having to stifle that conversation every time it arose.
Additionally, banning political discussions may be considered discriminatory to some. According to the National Labor Relations Board (NLRB), an employer may not interfere with political speech where there is a “direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.” The National Council of Nonprofits warns that not-for-profit organizations should be careful to maintain a non-partisan stance when dealing with the election or risk revocation of their tax-exemption status. However, this Business Journals article points out that “private sector employers generally retain the right to maintain a productive and non-hostile working environment.” With all of this in mind, employers can set expectations for behavior that will help to maintain a positive and respectful work environment.
Rather than trying to police every conversation, it may be more beneficial to set expectations for how to have respectful conversations – no matter what the subject. This SHRM article provides great suggestions on how to share political opinions without damaging work relationships. For example, it can be helpful to approach the conversation with an interest in learning from someone’s point of view rather than trying to change their opinion. Recognizing that everyone may not have the skills to do this effectively, consider providing training on how to discuss sensitive subjects and how to approach disagreement in civil and respectful ways.
We recommend that employers provide clear guidelines for how to discuss politics in the workplace and make the policy clear and easily accessible to the employees. This is a prime area to address in your employee handbook.
Ultimately, employers should stress the point that work comes first always. Everyone is still expected to meet their business objectives and to work together in an environment where employees can express themselves in a professional and respectful manner.
Having an employee handbook with policies and procedures that are easy to read and understand can help alleviate a lot of problems in the workplace. Not only do they set the stage for what is deemed inappropriate, but they can also provide guidelines for what is considered acceptable and expected behavior in your organization. Strategic HR can create, review, or augment your employee handbook. For more information, you can Request a Handbook Quote or visit our Employee Relations page to learn how we can help.
What Does an HR Audit Involve?
HR Audit. No one likes to hear that word—audit. Assessment. Inspection. Review. Evaluation. Analysis. No matter what word you use, negative thoughts start to fill your head. I challenge you, however, to look at this event as a chance to review and renew. A properly conducted HR Audit can be (and should be) a welcome addition to your annual HR calendar. Regularly having a review of your human resources function can help you remain the best in class and continuously improve the function and services you provide.
What is involved in an HR Audit?
Auditing involves an organized and structured review of your organizational practices. By reviewing company and department goals, policies, procedures, legal requirements, and established processes, the HR Audit will allow a complete review to assure you are on track and compliant. The review will help identify gaps in policies and identify what is happening versus what should be happening. Many audits identify areas where procedures are not followed or haven’t been updated. Identifying outdated or inconsistent policies and procedures can lead to:
- Review of processes to determine what makes the most sense for your organization
- Assuring that everyone is following the same procedures
- Process improvement and enhanced customer service
- Assuring HR Compliance
- Improvement of the quality of the process from those inside human resources as well as those outside of the process who rely on it for their department’s success.
How to conduct an effective HR Audit?
How do you make sure your HR Audit is a constructive event resulting in improvements rather than demerits? The key to an effective audit is to clearly define it and have the process work to your advantage. When selecting an auditor to review your function, I recommend securing an individual or team that will work with you to ensure you get what you want out of the review. In order to do that, interview those you are considering to take on the auditor role to verify that they understand your culture and your industry.
Consider the following before you engage in the process:
- Identify your desired outcome. What is the goal of your HR Audit? Why are you conducting this review? What do you hope to accomplish from the review? Is it a compliance-driven review? Is it a review of process and best practice? Some employers are confident that their compliance is on point and prefer a review of processes and best-practices in functional activities such as recruiting, payroll processing, or even benefits administration. Others are solely concerned about compliance and keeping up with the myriad of changing legal requirements. Determine your desired outcome before you begin and tailor the review to meet those expectations on the front end.
- Determine which HR areas you want to review. Are you reviewing all of the functional aspects of HR or just one or two key areas? For example, some employers request an in-depth review of a specific area, such as their recruiting function, rather than a review of all areas. The review would consist of an evaluation of both compliance and best practices in the recruiting process to identify areas of potential improvement surrounding their recruiting efforts. Others prefer to have a review of all of the HR areas. In this type of review, all functional areas reviewed would include recruiting and employment, recordkeeping, policy development, compensation, benefits, health and safety, communications, and payroll. These reviews typically involve a focus on compliance in these areas but also review processes and procedures for each of the areas. The organizational effectiveness of the HR function can also be reviewed to assure the department is meeting the needs of their internal customers.
- Determine who you would like to have involved in the audit. Will you only include human resources staff that regularly touch the function or will you include your internal customers as well? For example, if you are doing a review of your recruiting and employment process, who will you include? Your HR recruiting staff is an obvious choice, but what about the hiring managers in the functional areas? Will you include a sampling of individuals involved in the orientation and onboarding program? Determine how deep you wish to go as you review the areas and who will be involved in the audit.
- Determine how you are going to address any deficiencies or findings. The report provided at the end of the audit will most likely include a number of items that could be used for improvement. Findings may include items such as general compliance or regulatory items that need to be addressed or even a process improvement recommendation. Most audits help you to determine the high priority items versus those of lower priority based upon compliance concerns. Once they are identified, it will be up to you and your team to create your own internal priority for the action items and determine who will be tasked with correction. Some may involve an easy one-person / one-click fix, such as updating the I-9 form you are using. Others may involve improved process recommendations which could include a team to work through, resolve, and update. Determine how you will approach the “fixes” so expectations are clear at the onset. Not everything will be able to be addressed in one day, so align expectations accordingly.
A clearly laid out plan and expectation can significantly impact the concerns surrounding a human resources audit. If the review ends up being “nasty,” it is most likely due to a lack of clear expectation and direction at the onset. Work cooperatively with your chosen reviewer to make sure you are getting what you want out of the review so positive outcomes can be reached.
Thank you to Patti Dunham, Director, HR Solutions with Strategic HR, for sharing your expertise on HR Audits.
Strategic HR knows that keeping abreast of HR 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. If you would like to receive a customized quote for an HR Audit, you can Request an HR Audit Quote.
Compensating Employees for Travel Time
Question:
We have employees who occasionally have to travel from one of our offices to another during their work day. Are we required to pay them for their travel time?
Answer:
This is a very common situation, and the quick answer is it depends. Exempt employees generally are not entitled to additional compensation for travel time, so when evaluating whether or not to compensate for travel time you should focus only on your non-exempt staff. Work-related travel time NOT connected to the employee’s regular commute to and from work should generally be compensated and count toward an employee’s hours worked for the purposes of calculating overtime.
You should also have your travel time pay practices and policies reviewed by your legal counsel for the states and localities in which your employees are working to ensure compliance with applicable laws, and to ensure that your policies and practices are appropriate to your particular situation.
If an employee is commuting from home to their usual work site, it is not counted as compensable work hours; however, non-exempt employees who travel as part of their principal working duties should be compensated. Examples might include an office administrator traveling between multiple offices for meetings or a repairman going from one assignment to the next.
Another example of compensable travel time is if the employee is traveling from home to a non-typical work location and back home in the same day. The amount of time that the employee spends traveling to and from the non-typical work location that exceeds the employee’s normal commute is considered compensable travel time.
Generally, employees should be compensated for all time spent traveling during regular business hours.
Please bear in mind that laws exist in numerous states that provide expanded definitions of travel time or impose additional requirements for travel time pay. The Fair Labor Standards Act (FLSA) addresses this issue specifically in Section 29 CFR § 785.38 (Portal-to-Portal Act).
Strategic HR knows that keeping abreast of HR 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 HR Compliance and Recordkeeping page to learn about our auditing services which can help you identify trouble spots in your HR function.
Does My Company Need an AED?
Question:
AED’s have been mentioned in safety demos and tutorials that I have attended. Does my company need one of these devices? If so, what type of training is needed in order to use it?
Answer:
The safety and well-being of your employees and anyone who visits your place of employment should be top of mind for all organizations. There are many tools and resources that can help with your organization’s first-aid and emergency preparedness, including an AED.
What is an AED?
An AED is an Automated External Defibrillator, which is a portable device that measures the heart’s activity and can deliver an electric shock in order to correct the rhythm of the heart. It can also restore a heartbeat if the heart suddenly stops. An AED is meant to be placed in high traffic locations, and it is designed to be extremely simple for users to operate in times of an emergency.
According to the American Heart Association, there are roughly 350,000 cardiac arrests outside of a hospital setting each year. Cardiac arrest is when a person’s heart stops beating, and blood will stop flowing to the brain, lungs, and other important parts of the body. The person will typically lose consciousness very quickly, and they will die if normal heart function is not restored. Time is crucial in these instances since permanent tissue damage can occur within three to five minutes of loss of blood flow. For every minute the body goes without oxygen, the chances of death increase by 10%. Over 90% of patients that receive a shock from an AED within the first minute of arrest survive.
A study recently published by JAMA Surgery showed that the average response time for emergency medical personnel was roughly seven minutes. This time could increase up to 14 minutes for rural areas. This study drives home the fact that the general public can play a critical role in saving lives if they are trained on the basic skills and tools to help those in their community until medical professionals can arrive. Having an AED in your workplace can play an important role in your company’s emergency preparedness and saving lives.
Where can I find an AED?
There are multiple resources that can help a company pick out the best plan for their AED purchase, placement, maintenance, and training. Make sure to ask the manufacturer or seller about the intended use, storage options, maintenance and training requirements for any AED being considered for purchase. Contact multiple reputable vendors to find the best option for your company.
What type of training does my team need for an AED?
AEDs are designed to be as simple and user-friendly as possible. They often have voice and visual aides to help in their function. Although emergency training is not required in many states, it is encouraged. AED storage and display is also an important factor to consider. According to the American Heart Association, over half of employees do not know where they can find an AED in their workplace. Create an awareness plan to ensure employees know where to find the AED in the case of an emergency. It is commonly recommended to place the AED near the entrance of your building so employees, as well as non-employees, see the device when they enter the building. It is a best practice to have the device marked with a brightly colored “AED” sign.
There are multiple national nonprofit organizations, including the Red Cross and the American Heart Association, that provide online and onsite training to prepare your employees for how to use AED devices. Many local first responder organizations, like fire departments and police departments, can help provide training as well. Be sure to reach out and find the best fit for your organization. Also consider factors such as the size of the company, the costs of the training, the timing of training, and how to create an ongoing training program to keep people up to date in the future.
Strategic HR understands your concerns with the well-being of your employees. We offer expertise in health, safety and security to cover any need you may have from analyzing your safety programs to making sure you are OSHA compliant to proactively ensuring employee wellness. Please visit our Health, Safety & Security page for more information on any of these services.
What is a Certificate of Qualification for Employment?
HR Question:
This week a hiring manager was excited about a candidate but learned during an interview that the candidate has had a Felony for theft. The candidate mentioned having an Ohio Certificate of Qualification for Employment that they could provide. Although we are not a bank and the role does not handle money, we need to make sure our organization will not be put at risk by making a careless hire. Alternatively, we do not want to be discriminatory or lose an otherwise qualified individual that could make a great fit for the role. So what is a Certificate of Qualification of Employment and how can it help our company?
HR Answer:
Ohio law provides for a certificate to be available that removes criminal-record-based barriers to employment, without erasing or hiding the criminal record itself. The “Certificate of Qualification for Employment” (CQE) will allow persons who have a previous felony or misdemeanor conviction to apply to the court to lift the collateral sanction that bars them from being considered for employment in a particular field. A CQE is only given if an individual has been through an extensive application and investigation process and deemed, by both the Department of Rehabilitation and Corrections (DRC) and the Court, to be rehabilitated. A Certificate of Qualification for Employment may be revoked if the offender is convicted of or pleads guilty to a felony offense committed subsequent to the issuance of the certificate.
Employer Benefits of a Certificate of Qualification for Employment
A CQE can benefit an employer by removing mandatory rules that prohibit licensure or employment of individuals with certain criminal records. The Certificate may be used for general employment opportunities as well. If an employer knowingly hires a CQE holder, the Certificate offers the employer legal protection from a potential negligent-hiring lawsuit. (However, if the employer fails to take action if dangerous or criminal behavior is exhibited after hiring and retains the employee after such behavior, the employer can then be held liable.)
The Ohio Department of Rehabilitation and Correction provides information to learn more about the certificate and a link where you can assure the authenticity of a CQE. You can also contact The Ohio Justice and Policy Center or directly review Ohio Revised Code 2953.25.
Banning the Box
There are many states and cities with laws making it illegal to exclude an otherwise qualified applicant who has had a misdemeanor or felony. At least 16 states have already passed legislation, “banning the box”, which prevents employers from inquiring about a criminal background at initial application. Federal EEO laws, including Title VII of the Civil Rights Act of 1964, prohibit employers from discrimination by using criminal history information in their employment decisions because they can significantly disadvantage protected individuals such as African Americans and Hispanics.
The EEOC also has written the following guidance you may refer to:
- What You Should Know About the EEOC and Arrest and Conviction Records
- Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
This candidate’s Certificate of Qualification for Employment could prove to be a win-win. An applicant who has the qualifications you need and is looking for that long-deserved break may prove to be one of your most grateful and loyal employees if given the opportunity. Remember whether hiring or declining, before making a potentially costly decision, it is important to educate yourself on related federal, state, and local laws and/or seek legal counsel.
Struggling with hiring the right person and figuring out how and where to find candidates? Wondering how to do drug screens, background checks, physicals, references, and assessments? We can help you make sense of it all. Whether you need a complete recruitment solution or just help with pieces of the process, Strategic HR can assist you. Visit our Recruitment page to learn how we can provide you with top-notch outsourced recruitment solutions.
Can you be an Employee and Independent Contractor for the Same Company?
HR Question:
Can an individual that is working for us be both an employee AND an independent contractor?
HR Answer:
According to IRS guidelines, it is possible to have a W-2 employee who also performs work as a 1099 independent contractor. For example, it is possible that an individual could work part of the year as an employee and part of the year as an independent contractor due to a layoff or even a resignation. Another way this could occur would be if the individual is performing completely different services or duties for a company that would qualify them as an independent contractor.
Examples of Employee and Independent Contractor Dual Classification
- A production worker is laid off due to a slow down in the warehouse. The individual begins doing janitorial work for a few local companies and provides services to the same company from which they had been laid off. In this situation, the individual would receive a W-2 for the time they worked as an employee and a 1099 for the janitorial work.
- An Executive Assistant who also owns a cleaning service business can have dual classification if their employer contracts with their cleaning company to clean the offices in the evenings.
- An IT Help Desk Associate who performs graphic design work as a side gig can have dual classification if their employer contracts with the individual to create a new logo for the company.
- An Electrician who also does handy work after hours in the community can have dual classification if the individual contracts with their employer to replace the company’s roof.
- A custodian who works for a county public school and also owns and operates his own snow plowing service on nights and weekends can be classified as an employee and issued a Form W-2 for his custodian position. At the same time, when the county contracts with the individual for snow plowing services, he is an independent contractor as well.
How to Determine if Someone is an Employee or Independent Contractor
To determine if this dual classification applies to your situation, you must first verify if your current (or previous) employee’s secondary work qualifies as an independent contractor. The IRS provides specific guidance surrounding the Independent Contractor Definition.
As an alternative to making the determination yourself, you can choose to have the IRS review your situation and make the determination for you, but it will take some time. You would need to submit your position information to the IRS directly by completing IRS Form SS-8. In doing this, the IRS will determine the proper job classification and even guide you on dual classification. Although you will be confident in using the correct classification by following this route, know that the average response time is estimated to be six months.
If you (or the IRS) determine that the extra work being completed meets the Independent Contractor guidelines, you can pay them as both an employee and an independent contractor. If you elect to do this, be sure to keep accurate records. Companies should maintain a W-4 for employees and a W-9 for those working as a contractor. In addition, be sure to clearly and accurately document the hours worked in each category and the duties that were performed. It is widely believed that having a worker receive both a W-2 and a 1099 increases the likelihood of an audit by both the IRS and the DOL. Therefore, maintaining detailed records will be essential for your defense.
What Happens if you Misclassify Employees
Criminal penalties and liability for backpay may be imposed against organizations and leaders if Fair Labor Standards Act (FLSA) laws are violated. The DOL has recently increased its focus and scrutiny on employer misclassification of independent contractors. It is important to be aware that additional auditors have been engaged to direct their attention toward this area of compliance. Therefore, be sure that you have followed all relevant guidelines and maintain proper recordkeeping to protect your organization and remain compliant.
Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP for updating this HR Question of the Week.
Strategic HR knows that keeping abreast of HR Compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by fielding your questions regarding properly classifying your employees and other HR matters. We offer resources to help you identify and mitigate compliance issues. Visit our HR Compliance & Recordkeeping page to learn about our auditing services which can help you identify trouble spots in your HR function.
Do I Have To Pay Employees for the Company Holiday Party?
HR Question:
Our organization is hosting our annual holiday party, and we’re trying to answer a question – do we have to pay our employees to attend?
HR Answer:
It’s that time of year again – the holiday season is here! And with this season come parties and events designed to celebrate this festive time of year, show appreciation for employees and their contributions, and build team camaraderie by gathering together. Plus, in a labor market where employee retention is a primary concern, holiday parties can be a way to provide levity to a stressful time, show an organization’s thanks and commitment, and engage employees (and potentially, their families). But just because it’s a work-sponsored event, does that mean employers have to compensate their employees for time spent at the party?
Do I Have to Pay Employees for the Holiday Party?
In general, employers are not required to pay employees if the company holiday party is considered voluntary and takes place outside of regular working hours. Holiday parties scheduled during the regular workday should be compensated. If the employer requires all employees to attend an event outside of regular working hours, then it may be considered work time and employees should be compensated for attendance. Be sure to follow applicable FLSA requirements as well as any internal policies that you have established.
How Should I Pay Employees for the Company Holiday Party?
If an employee is exempt, their salary covers all work obligations. Non-exempt employees, however, need to be paid for attending in the following situations:
- If attendance is mandatory, non-exempt employees should be paid for the extra time and travel to and from the party (if it’s not held at the regular work location).
- If the holiday party includes work-related activities, such as a meeting and/or team-building exercises, non-exempt employees should be compensated.
- If a non-exempt employee is working at the event including set-up, clean-up, serving, and/or representing the company (i.e., wearing a mascot costume), they should be paid, even if they are working voluntarily. Want to keep internal costs down and avoid placing additional stress on your team? Don’t ask or permit non-exempt employees to work the holiday party.
It’s important to note some employment contracts or collective bargaining agreements may have provisions that require employers to pay employees for attending certain events, including holiday parties. Be sure to keep those agreements in mind when scheduling or factoring in potential costs for a holiday party.
What Else Should I Consider?
As always, whenever there’s alcohol involved, it’s important to keep some of the legal considerations in mind. For example, do you have a plan for handling alcohol? Will there be drink tickets or a cash bar? Do you plan to enforce a drink limit to help avoid DUIs and other potential risks? These and several others are good questions to ask to determine ways to limit the organization’s liability for this event.
In the end, it’s important for employers to communicate clearly about whether attendance is voluntary, and whether employees will be compensated for their time. The goal of a holiday party is to celebrate, relieve some stress, and enjoy spending time with your team – not to force people to gather if it’s not how they want to spend their time.
Thank you to Becky Foster, Senior HR Business Strategist, and Samantha Kelly, Senior Sales and Marketing Strategist, for contributing to this HR Question of the Week.
Do you find yourself without answers to tough Benefits and Compensation questions? Whether you need an analysis of your current benefit offerings, a review of your salary structure, or outsourced payroll/benefits administration, Strategic HR Business Advisors can do the job. Please visit our Benefits & Compensation page for more information or Contact Us.
Federal Employment Poster Requirements for On-Site and Remote Workers
HR Question:
I keep receiving notices that I need to order new posters to meet federal employment poster requirements. Many of my employees aren’t in the office regularly and those that are don’t look at the posters or any of the compliance documents we are required to distribute. What’s the risk if we don’t post these posters or distribute the annual notifications to employees? Eliminating this task would save me and the company a lot of time and money.
HR Answer:
Even if you feel employees are not reviewing the posters, there’s still a compelling reason to provide them. The Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Employee Retirement Income Security Act (ERISA) require these employment postings and notices. And organizations that don’t comply with the requirements can be fined.
To save time, you can purchase a package of posters from a reputable vendor. This can be an easy, but potentially costly, way to fulfill the necessary poster requirements. However, if you would like a more cost-conscious solution, the DOL has a great option. Their Workplace Posters Overview provides a list of the necessary posters, along with links to downloadable posters in multiple languages.
Did you know that poster requirements can vary by company size and industry? If you’re not sure what federal posters your organization is required to provide, the DOL created the FirstStep Poster Advisor as an interactive, step-by-step guide to help you with poster compliance.
How to Meet Remote Employee Poster Requirements
As many employers have shifted their workforce to a remote or hybrid work model, these employers have to shift their typical in-office practices to meet the Department of Labor’s requirements for their remote employees. To remain in compliance, the DOL requires employers to post labor posters electronically in a file that is accessible by everyone. Also, the file should not be password protected.
Employees must be able to find employment posters for their organization regardless of their work location. So if employers have a hybrid work model, a best practice is to have posters physically posted at the worksite while also including the electronic version of the posters on an accessible intranet.
Penalties For Not Following Federal Employment Poster Requirements
If you are still asking yourself if it’s worth the hassle and expense, consider the potential penalties for non-compliance. In January 2022, the penalties for failure to post and/or provide notifications increased. Although some of the fines may not seem significant, they can add up quickly. According to the Federal Register, here is a sampling of the new maximum penalties for violating the following posting requirements:
- $189 — Family and Medical Leave Act (FMLA)
- $14,502 — Job Safety and Health: It’s the Law (OSHA)
- $23,011 — Employee Polygraph Protection Act (EPPA)
For notifications, the Employee Retirement Income Security Act (ERISA) has significant fines for:
- Failure to provide the Summary of Benefits and Coverage (SBC) Plan Description ($1,362 per failure)
- Failure to provide an automatic enrollment notice for your 401(k) plan ($2,046 per day per person)
The Federal Register Poster Fine Reference provides details for all the fines you can incur for failure to comply.
Don’t Forget About State-Mandated Posters
In addition to federal posters, you may also be required to provide state posters. Here are links to posters required by Ohio, Kentucky, Indiana, and all other states. We recommend consulting with your legal counsel to ensure that you provide all of the posters that are appropriate for your organization.
As you can see, there could be several employment posters that your organization is required to post. So, if you think you are going to save time and money by not posting these materials, you may want to reconsider the potential fines and penalties that could result from non-compliance. Is it worth the risk?
Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP, Director of HR Solutions for contributing to this HR Question of the Week.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but it is extremely important and can get you into hot water if not done properly. Learn how Clark Schaefer Strategic HR can help with your HR Compliance and Recordkeeping needs. Feel free to Contact Us with any specific questions you may have.
Are Evacuation Drills Mandatory to Meet OSHA Training Requirements?
HR Question:
According to the OSHA Training Requirements, is it mandatory that I conduct practice evacuation drills as part of my company’s annual training?
HR Answer:
The Occupational Safety and Health Administration (OSHA) does not require employers to conduct drills at a certain frequency. However, it is recommended as part of a comprehensive Emergency Action Plan, which is required. OSHA standard 29 CFR 1910.38(a) outlines the requirement for written documentation, planning, and training for workplace emergencies, and as an employer, preparing for the ‘worst case’ is something you should want to do. In today’s world where we’ve seen an increase in active shooter incidents, unpredictable weather patterns, and wildfires, emergency preparedness will allow you and your employees to have a plan in place should you be impacted by some type of potentially hazardous situation.
How to Prepare Employees for Workplace Emergencies
Employers should consider evacuation plans as one small part of the required Emergency Action Plan and use them as the opportunity to practice. The drills could include evacuation due to a fire, chemical leak, or even a shelter in place in the event of an external chemical emergency.
OSHA’s Evacuation and Procedures e-tool provides step-by-step guidance to help you prepare your workplace for potential emergencies. In addition, this OSHA Workplace Emergencies Factsheet provides an outline of what is required. Once you have a plan in place, OSHA recommends that you review the plan with employees and hold practice drills “as often as necessary.” It is also advised to include outside resources such as fire and police departments when possible. OSHA recommends that after each drill you assess the effectiveness of the drill (and the plan) and make adjustments as needed.
How to Meet OSHA Training Requirements
Workplace safety training will vary depending on the type of business. Here are some important points to consider when deciding what types of training your employees need to meet OSHA Training Requirements and Standards:
- Educate your employees about the types of emergencies that may occur and train them in the proper course of action.
- The size of your workplace and workforce, processes used, materials handled, and the availability of onsite or outside resources will determine your training requirements.
- Be sure all your employees understand the function and elements of your emergency action plan, including types of potential emergencies, reporting procedures, alarm systems, evacuation plans, and shutdown procedures.
- Discuss any special hazards you may have onsite such as flammable materials, toxic chemicals, radioactive sources, or water-reactive substances.
- Clearly communicate to your employees who will be in charge during an emergency to minimize confusion.
It is a good idea to keep a record of all safety and health training. Documentation can also supply an answer to one of the first questions an incident investigator will ask: “Did the employee receive adequate training to do the job?”
Emergency Action Plan Resources
OSHA has a number of outstanding resources to assist you in your planning process for an Emergency Action Plan, as well as all of the required OSHA standards. Free resources to help you with your safety training plans can be found in OSHA’s Training Resources and this updated booklet which outlines all of OSHA’s training-related requirements in one document.
Keep in mind that although drills are not required, a well-developed emergency plan with proper training (including drills) will result in fewer injuries and less confusion and chaos during an emergency. A well-organized response will help you, your employees, and your business to be in the best position to effectively handle an emergency.
Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP for updating this HR Question of the Week.
Are you overdue on harassment or other annual training? Does your current training curriculum need to be refreshed to reflect changes in company policy or legal requirements? Strategic HR has the expertise and resources to help. Visit our Training and Development page to learn more or Submit a Training Request.
What is the Value of Job Descriptions?
HR 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. What is the value of having job descriptions?
HR Answer:
No, job descriptions are not legally required documents, however, they can help your employees (and their supervisors) to understand their responsibilities and how their roles contribute to the mission of your organization. They are also an important part of compliance and, when written well, can help to protect your organization should you face employment law disputes.
To achieve optimal performance, it’s important that your employees understand the scope of their responsibilities. Job descriptions help to define a job by determining and documenting the responsibilities of the position and the physical requirements of the job. This document is not a “how-to” or a procedure outline (which can change frequently), but rather it should capture what individuals are accountable for in their job.
Job descriptions add value because they:
- Provide a clear picture of the job to applicants applying for the position
- Help current employees to understand what they are accountable for
- Serve as a helpful tool for supervisors to coach employees on how to improve performance
- Help to determine appropriate salary levels for a position based on the expectations, education, and experience requirements for the role
- Allow individuals to evaluate the physical requirements necessary for the position and what the work environment is like (i.e., Does it require heavy lifting? Is it a “desk job”? Does it involve frequent travel, evenings, or on-call availability, 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 back from a medical leave or workers’ compensation leave, for example)
Getting Started: What to Include in a Job Description
If you’re beginning the process of creating job descriptions, it can be helpful to conduct a job analysis to understand the necessary tasks and responsibilities for the position and how the job is performed by employees at your organization.
Common components of a job description include:
- Job Title
- Reporting Structure: Role the position reports to and role(s) the position supervises, if applicable
- FLSA Classification
- Date of Job Description Creation / Revision
- Job Summary: It is helpful to provide a brief, general overview of the position.
- Essential Job Duties/Function: Describe the duties that must be performed in the job. Focus on the function of the job rather than the means used to achieve that function. It helps to identify the required outcomes of the job tasks rather than describing the tasks themselves.
- Physical Demands/Requirements
- Work Environment
- Minimum and Preferred Requirements
- Disclaimer: Explains the job description isn’t designed to list every responsibility and is subject to change.
- Acknowledgement/Signatures of Incumbent and Supervisor
For additional components to consider, see this step-by-step guide provided by the Society for Human Resource Management (SHRM). We also recommend that you consult your legal counsel for guidance to ensure your job descriptions are appropriate for your organization and legally compliant.
Out of Date Job Descriptions Pose a Risk
It is important for your job descriptions to be kept up to date, otherwise they can potentially cause more harm than good when it comes to providing HR Compliance support. However, when written well, the positive aspects of a job description outweigh the negatives and can provide you with documentation on the job requirements and support actions that you may have taken. Therefore, whenever your organization goes through significant changes or the nature of your work or specific jobs shift, be sure to revisit and revise your job descriptions accordingly.
An Easy Way to Keep Job Descriptions Updated
If finding the time to revise your team’s job descriptions feels like a daunting task in and of itself, consider addressing them one at a time. An easy way to work updates into your routine is to have supervisors take a few minutes during the performance review process to work with each employee to make any necessary updates their job descriptions. Approaching the updates one at a time during your reviews can help to make the process more manageable.
Job descriptions are too important to fall to the bottom of the “wish list.” When done correctly, they serve a multitude of functions. However, we understand busy workloads often relegate job descriptions to a “when time permits” activity. If you are putting off creating or revising your job descriptions due to a lack of time or staff, contact us. Dare we say it’s “in our job description” to help!
How to Handle Background Checks for Temporary Employees
HR Question:
We had a fabulous individual working for us through a temporary agency. We decided to hire the individual and ran them through our process, including conducting a background check. The results were shocking – we thought the temporary agency had already verified their background. How should I handle background checks for temporary employees going forward to ensure this doesn’t happen again?
HR Answer:
Many companies treat temporary employees differently when it comes to background checks and only realize it when it’s too late – when they try to hire the individual. The staffing company said they ran a “background check” before they placed the individual with you. However, when you compare the results of your own verification versus the staffing company’s, it hits you: If you had run your own background check first, instead of relying on the staffing company’s, you would never have considered the individual in the first place. So, now what do you do?
Unfortunately, this situation is all too common. Many employers allow temporary workers into their organization without knowing anything about the “background check” the staffing company performed before those individuals started working for their organization.
Did they only run a database search? Maybe they just entered the employee’s name in a local county records website or simply Googled the person. Or, even more disturbing, maybe they didn’t research the person’s background at all!
The term “background check” is very broad. When working with temporary employees, it is best practice to confirm that your staffing company is running quality courthouse background research before you let them place temporary personnel with your organization.
Background Check Tips for Temporary Employees:
- Connect with your attorney to discuss whether or not you should include background check requirements in your Master Service Agreement (MSA), as well as how they are to be conducted. Many times that might include the last seven years of residence, county, state, social security number, aliases/previous last names, etc. You may want to consider using a third party rather than an internal database search.
- Ask to see the reports for individuals who have a criminal record. It is a good HR practice to apply your evaluation approach consistently to both temporary and permanent employees.
- Consider including county criminal research. Many organizations have found county research to be a helpful source in finding if a felony or misdemeanor charge exists for an individual, and it can help to support HR Compliance with the Federal Credit Reporting Act (FCRA).
- Don’t be fooled by a “federal” search. This check certainly has its value, however, it can be misleading. While it may sound all-encompassing, it only includes federal crimes. Pre-employment screening companies have found the majority of crimes committed are state crimes. Therefore, most people with a criminal past would come back clean on a federal search.
Managing the hiring process can be tricky. If you currently run pre-employment screenings before you bring someone on board, you already understand the importance of this verification process. To help protect your organization and your employees, follow the best practice of having employees from staffing companies meet the same expectations as direct hires.
A special thank you to Matt Messersmith, President/CEO, Signet Screening, and Amy Turner, Senior HR Business Advisor, for sharing their expertise in this HR Question of the Week.
Does the thought of hiring someone make your head spin? Full-time, temporary, temp-to-perm, intern…pre-employment assessments, references, background checks, drug screens – we can help you manage it all. Whether you need a complete recruitment solution or just help with pieces of the process, Clark Schaefer Strategic HR can assist you. Visit our Recruitment page to learn how we can provide you with top-notch recruitment solutions.
How To Handle Expired Prescription Drug Use In The Workplace?
HR Question:
We recently had a situation where a longtime employee, with no prior incidences, took an expired prescription drug that was inhibiting her performance. After her drug test, she tested positive with it in her system and the script was older than one year. What should I do?
HR Answer:
This is certainly a tricky situation, and you are not alone in dealing with this challenge. A recent National Safety Council survey reports that more than 70% of employers have been impacted by prescription drugs, yet only 19% feel extremely prepared to deal with prescription drug misuse.
As you begin to assess your next steps, here are some things to consider:
Policy
What does your Drug Free Workplace Policy say? Typically, an acceptable deviation of a positive drug test is supplying a valid prescription from an attending physician. In this situation, the employee does not appear to have that if the drug was expired. What does your policy say about the consequences of a positive test? Take the opportunity to assess if you’ve covered as many conceivable scenarios as possible – from an expired prescription to innocently taking a family member’s prescription in an unusual circumstance.
Training
This is why Drug Free Workplace training is so critical. Such training should inform employees and managers of exactly these types of situations and potential consequences so this scenario can be avoided. What does your policy say about training? Have you adhered to that?
Precedent
What are the consequences of making an exception? If you make an exception for this individual, are you willing to make an exception the next time it happens to another employee (perhaps a lower performing employee)? Does making an exception impact the effectiveness of your Drug Free Workplace program?
Consult
Contact your Medical Review Officer (MRO) or find one that is familiar with your industry to gain some advice, as they are the experts. They will be able to assess whether or not the positive drug test is justified by the prescription or not, shedding some light on the next steps to take.
Unfortunately, there is no easy answer in this situation. It is vitally important that you remain unbiased, fair, and that you do what’s best for your company. Carefully consider the impact of your decision on future situations that may arise.
Providing a Drug Free Workplace Policy and Training are incredibly important when it comes to the safety and security of your workplace and employees. Strategic HR can provide you with best practices, policies, and training when it comes to creating a Drug Free Workplace or any other needs concerning the Health, Safety and Security of your workforce. Contact us to learn more about how we can help to develop your Drug Free Workplace Policy and Customized Training or view our Online Drug Free Workplace Training.
How do I handle missing or incorrect I-9 Forms?
HR Question:
My company recently began to review our I-9s and found that we are missing some I-9 forms, and some are incomplete. Can we ask the affected employees to fill out another I-9 if it is missing? If so, how do we do it correctly? And if it was incomplete, can we update it on the old form? Please help!
HR Answer:
First, it’s important to understand that 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 been met. Examples of substantive errors include failing to complete I-9 paperwork or not signing or dating Section 2 of the form.
What to do if you have Substantive I-9 Errors (i.e., missing I-9s or incomplete I-9s)
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 along with the current date. 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. A note should also be included with the I-9 regarding the reason you had to complete a new I-9.
To Correct an Existing I-9 Form Error
- Draw a line through the incorrect information
- Enter the correct information
- Initial and date the correction
To correct multiple errors on the form, you may redo the section on a new I-9 form and attach it to the old form. A new I-9 can also be completed if major errors (such as entire sections being left blank or Section 2 being completed based on unacceptable documents) need to be corrected. A note should be included in the file regarding the reason you made changes to an existing I-9 or completed a new I-9.
Be sure not to conceal any changes made on the form. Doing so may lead to increased liability under federal immigration law. If you have made changes on an I-9 using correction fluid, it is recommended that you attach a signed and dated note to the corrected I-9 explaining why.
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 this 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 (and substantial) fines may be imposed.
Penalties for I-9 Violations
Failure to comply with I-9 verification and document retention requirements could result in a penalty. Most recently, the minimum penalty for a first offense is $252 per I-9; the maximum penalty is $2,507 per I-9 for a first offense. These penalties are adjusted for inflation each year, so you should review the Federal Register’s Civil Monetary Penalty Adjustments for future updates. It’s also important to note that fines can increase significantly for second or subsequent violations.
Penalties are assessed based on several factors, including:
- The size of the employer
- Any good-faith efforts that were undertaken by the employer
- The seriousness of the violation
- Whether the individual involved is an unauthorized alien
- 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.
Maintaining Compliance – How to Conduct an I-9 Audit
To reduce your risk, it is recommended to conduct regular internal I-9 audits and correct any mistakes appropriately. If you are unfamiliar with the process, see our article on how to conduct an I-9 audit. Additionally, the U.S. Immigration Customs and Enforcement and the Immigrant and Employee Rights Section (IER) have provided joint guidance to help employers perform internal audits which can be found in this handy downloadable guide.
It is also important that you continue to be aware of any reporting or process changes, such as the ending of the I-9 verification flexibilities, to ensure that you are maintaining your records properly.
Bottom Line…
It’s best to always ensure compliance within the appropriate three-day verification period from the employee’s date of hire to when the I-9 form is completed and signed by both parties. If you discover an error, you should take corrective action immediately. 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. For additional support, you may want to contact an I-9 expert or legal counsel for guidance. We also recommend correcting any internal practices that led to the discrepancies so they are not repeated.
Thank you to Cassie Whitehouse, M.Ed., Senior HR Business Advisor, for updating this HR Question of the Week.
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. If you’re concerned about your I-9 compliance, you should conduct an internal I-9 audit. If you don’t have the time or the expertise to do this properly, one of our expert HR Advisors at Strategic HR would be glad to help. Contact us for assistance with your I-9 audit or other recordkeeping needs. You may also be interested in learning more about our HR Compliance and Recordkeeping Services.
What Is a Safety Audit and How Can Job Hazard Analysis Help?
HR Question:
My manager is concerned about our company’s ability to pass a safety inspection and wants us to do an audit. Can you explain what a safety audit is and how to conduct one?
HR Answer:
A Safety Audit (known more formally as a Health and Safety Audit) is a routine, comprehensive review of the efficiency, effectiveness, and compliance of a company’s safety management programs. Although ensuring the safety and well-being of employees should always be a top priority, it is also critical to comply with local, state, and federal regulations.
For example, OSHA’s General Duty Clause requires that employers provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” By conducting Safety Audits, the company is keeping a safety culture in the forefront of the business while doing its due diligence to increase the likelihood of complying with this clause.
What to Include in Safety Audits
A Safety Audit is similar to a comprehensive health check-up for an organization’s safety framework. The audit should include an in-depth review of safety protocols, recordkeeping, policies, procedures, and physical facilities. The main objective is to identify potential hazards, assess regulatory compliance, and recommend measures that improve and strengthen workplace safety.
It’s important to note that there isn’t a “one-size-fits-all” approach. Audits must be customized to the type of industry, size of the company or location being audited, applicable local, state, and federal laws, and any other company-specific factors that might affect the safety and health of your workforce.
How to Use Job Hazard Analysis in the Audit
Embedded within Safety Audits is the practice of conducting a Job Hazard Analysis (JHA). A JHA is an important component that dissects every job or task into steps, pinpointing potential hazards associated with each. You can leverage JHA to gain insights into the risks employees encounter during their daily responsibilities. This analysis forms the cornerstone of proactive risk management, facilitating the development of targeted training programs and safety initiatives tailored to address specific vulnerabilities.
The Advantages of Job Hazard Analysis:
- Informed Decision-Making: Armed with insights from JHA, the company can make data-driven decisions on resource allocation, training priorities, and safety measures thereby optimizing the impact of its initiatives.
- Tailored Training Programs: JHA results enable the company to design training programs that are finely tuned to address skill gaps and safety concerns, fostering a well-informed and competent workforce.
- Regulatory Adherence: JHA aligns with regulatory requirements that mandate hazard assessments, helping organizations increase their chances of being compliant.
- Employee Engagement: Involving employees in the JHA process cultivates a sense of ownership over safety, fostering engagement, camaraderie, and proactive participation in safety initiatives.
Turn Safety Audit Findings into Action
Once the Safety Audit findings and JHA insights are gathered, the company should take the following steps:
- Strategic Recommendations and Action Plan: Develop an action plan that translates audit and JHA insights into actionable recommendations. Assign responsibilities, set timelines, and establish priorities to support efficient implementation.
- Tailored Training Initiatives: Harness the power of JHA to craft training programs that align with identified skill gaps and safety needs. Equip employees with the knowledge and skills needed to navigate their roles safely.
- Continuous Monitoring and Adaptation: Regularly track the progress of the action plan and evaluate its impact on overall safety. Adapt strategies as needed in response to evolving risks and changing circumstances.
- Transparent Communication: Maintain open channels of communication with employees, fostering a culture of dialogue and receptiveness. Involving employees in safety initiatives empowers them and contributes to a safer workplace.
Safety Audits and Job Hazard Analysis are pivotal tools in cultivating an environment of trust, productivity, and well-being. By proactively addressing risks, strengthening and reinforcing safety measures, and nurturing a culture of safety first, the company not only strives to meet regulatory obligations but also underscores its commitment to employee welfare.
As industries evolve and challenges transform, the dedication to safety remains unwavering. Through regular audits, analyzing results, and responsive measures, the company can continue to pave the way for a safer work environment.
Thank you to Sherry Hume, SHRM-CP, HR Business Advisor for contributing to this HR Question of the Week.
Have you had a safety audit recently? Do you know which OSHA forms you are required to complete? Strategic HR has the expertise to develop/review your policies and practices to support the safety of your workers, customers, and visitors. Visit our Health, Safety & Security services to learn more about how we can assist you with workplace safety.
How Long Should We Keep Resumes and Applications?
HR Question:
We’ve received a lot of resumes recently – some have been for positions we’ve posted, and some are unsolicited. Do we have to keep all of these resumes, and if so, how long do we need to keep the resumes and applications?
HR Answer:
First, let’s address what to do with unsolicited resumes. You are not obligated to store unsolicited resumes; however, it is important to be consistent with your approach. If there are any unsolicited resumes that you have kept for further consideration, your best approach is to keep all unsolicited resumes for the same duration of time that you retain your solicited resumes.
For resumes and applications that you have received in relation to a job opening, there are a few federal laws that require employers to retain employment applications and related documents ranging for a period of one to two years from the date of the hiring decision (the date the position was filled, not posted). Employers are responsible for following the federal laws under which they are covered as well as any contractual requirements that they may have (i.e., union contracts) that may require additional time to maintain records.
Another important item to note regarding applicant recordkeeping is that you are required to maintain not only employment applications for a position, but the entire hiring record. Hiring records could include such things as applications, resumes, screening tools and assessments, background checks, and reference checks. Anything that you use in assisting you with an employment decision is considered part of your hiring records.
Major federal laws that address employment records retention requirements include:
- Title VII of the Civil Rights Act of 1964 – Requires employers to keep various employment records, including job applications, for one year from the date the application was received.
- Age Discrimination in Employment Act – Requires employers to retain employment applications for one year. There is language, however, that indicates if you are aware the applicant is over age 40, you should retain it for as long as two years.
- Americans with Disabilities Act – Requires employers to retain job applications and documents for one year. There is some variation based upon whether or not the applications are solicited or unsolicited, but the maximum retention is two years.
- Executive Order 11246 – If you are a government contractor and have less than 150 employees or a contract of at least $150,000 you must retain these records for one year. If you have at least 150 employees or more and a contract of $150,000, you are required to keep the records for two years. If you have a resume on hand from a previous search and decide to consider it for a new position months down the road, you will need to keep that resume or application for the time required based on the last viewing of the document (i.e., 1-2 years past the fill date of the second position).
A word of caution – if there is a discrimination charge or unlawful employment practice brought against the employer, employment applications must be retained until the matter reaches a resolution. This can get tricky if someone claims discrimination because they did not get a promotion; the employer is then required to keep all the applications received for that promotion until the claim is resolved. With a lengthy lawsuit and litigation, this could be an extended amount of time.
Generally speaking, good practice is to keep resumes and applications of non-hired individuals for two years following the date the hiring process is completed for a position (i.e., from the time the new employee starts working). Remember to consult state laws in addition to federal regulations when determining how long to keep employee records.
Recordkeeping can be a daunting task, especially when you are trying to clean out old records and maintain the pertinent ones to remain compliant. Strategic HR understands your frustration and has many tried-and-trusted tips on recordkeeping – including a handy Recordkeeping Desktop Reference to help you decide what to keep and what to toss. Visit our HR Compliance & Recordkeeping Services to learn more about ways we can help you to get your employment records in order.
