Have a question? Ask Claudia!
Q: We hire Independent Contractors for our sales positions in our company. According to the new guidelines released about Independent Contractors, can we no longer do so?
A: Unfortunately, each individual independent contractor situation will need to be evaluated on a case-by-case basis. At Affinity HR Group, we are in the process of assessing each and every one of our own contractors under the new guidelines to determine whether they continue to satisfy the new requirements. Alas, there is no “general rule” that we can apply. Each contractor situation has to be evaluated against the new standards. To review the new standards google: US DOL administrator’s Interpretation No. 2015-1
Q: We have been hearing about the new changes to overtime that the Obama Administration is implementing. It is okay to require approval for overtime and whether it is permissible to withhold overtime payment if the hours worked are unapproved.
A: Yes and no. Yes, overtime can require prior managerial approval. And no, you cannot withhold payment of unapproved overtime – the Fair Labor Standards Act is very clear that employees must be paid for all time worked, whether approved or not. Instead, employers should treat unapproved overtime as a disciplinary issue subject to the company’s progressive disciplinary process, whereby repeated violations of the overtime approval policy can lead to suspension or dismissal.
Q. We want to require our employees to read, speak and write English at work. Is such a policy legal?
A. A policy like this would need to be strictly scrutinized. For example, let’s say you are hiring a cleaning crew for your building. Given the chemicals that they use and the interactions that they may have with the tenants, it may be appropriate that they be sufficiently fluent to speak, read and write in English to perform the duties of the job. However, it is hard to imagine what the business case would be to require that they speak English with one another instead of their native language while performing the duties of their job.
Q: We are very short-staffed right now and my customer service team is putting in many late hours and working over the weekend to get caught up. Can I provide comp-time to them? Some have said they would prefer that to overtime.
You may offer comp time to your non-exempt employees in addition to overtime they are due, but not in lieu of it.
Q: I have discovered that one of my best people is out looking for another job. How could she be so disloyal? Should I confront her?
A: Before you confront her, consider this: there is probably something in the current work environment that is unsatisfactory to her. It's perfectly normal for unhappy, high performers to seek opportunities that offer better status, growth, challenge or pay. Don’t be hurt or angry – be concerned that your environment is unsatisfactory. Instead, listen to your employees. Schedule one-on-one check-ins to hear from them. "How are things going?" "How could we improve things around here?" "What are your development goals?" "What are your dreams?”
Study after study show that employees want to be informed, challenged, supported by colleagues and supervisors that care for them, and given the resources to do the best job possible. Money is rarely the true reason for employee turnover. Start listening now. Even if it’s too late for this employee, others will benefit from your consideration and concern. For more on this topic, I recommend two books: 12 - The Elements of Great Managing by Rodd Wagner & James K. Harter and The Dream Manager by Matthew Kelly.
Q: We ask the following questions on our job application and during our interviews. Are they okay to ask?
What year did you graduate college?
Do you own your own home?
Have you ever been convicted of a crime?
A: The short answer is, no, you shouldn’t ask any of these questions on your application. It is never appropriate to ask what year someone graduated from college just as it’s not appropriate to ask someone their age. It is a prohibited interview question.
Secondly, whether the individual owns his or her own home is not relevant for employment. Moreover, certain protected classes have lower levels of homeownership so it’s best just not to ask this. For employment purposes, homeownership isn’t relevant – ability to perform the duties of the job is relevant.
Finally, while we do encourage employers to run a criminal background check, its best to do so only after a contingent offer of employment is extended. Increasingly, state and local municipalities are making it illegal to ask this question prior to an offer of employment – best to play it safe and wait until the end of your hiring process.
Q: Is there a limit to the number of days an exempt employee can work? For example, can I have an exempt employee work 10 days in a row?
A: In general, the Fair Labor Standards Act places no limit on the number of hours or days that an employee age 16 or older may be required to work. In general, employers are free to require the employee to work as many hours or days as necessary to complete all their job duties.
That said, some states such as California and New York, require a day of rest (24 consecutive hours of time off during a workweek) and some require a minimum break time over a month period. Our best advice is to check state law, check your policy handbook and remember that exhausted employees may not be happy, engaged or productive employees.
Q: Our employment application asks if the candidate has been convicted of a felony. Is it okay to ask this question?
A: The answer depends on where you operate. In more than 30 states and local municipalities have passed some form of “ban the box” legislation which prohibits employers from screening out those with criminal records in the early stages of the employment process. We expect many more states and localities to follow suit. Best to check the following guide from the National Employment Law Project to see if you operate in a location with “ban the box” restrictions: http://www.nelp.org/banthebox
Because the landscape is changing so quickly, our best recommendation is to delete that question from your application and hold off on inquiring about criminal history until after a contingent offer of employment is made to the candidate.
Q: Christmas falls on our normal payday. When that happens, can we pay employees when we return from the holidays?
A: No, the FLSA http://www.dol.gov/whd/regs/compliance/hrg.htm
requires that employees’ payday be established and not vary from week to week or month to month. If they can’t be paid on the established payday, it is best to opt for paying employees early rather than late. That’s why we recommend that employers give themselves a few days (up to a week) between when they process payroll and payday so that if there is a problem or a holiday, they have the option to pay employees early (rather than late).
Q: My first shift manager came in today and found three Vicodin tablets on the desk that he shares with the second shift manager. What should I do?
A: I would take this very seriously. You either need to confront the second shift manager and ask him directly about this, or otherwise conduct an investigation to determine if the medications belong to him, have been prescribed for him, and whether he is taking them while on the job. This drug is an opioid that can seriously alter or impair one’s abilities, and this can put both the employee and his co-workers at risk of injury. Individuals who are under a doctor’s care and are legally prescribed these types of medications should be required, under your drug-free workplace policy, to notify you so that a workplace accommodation can be made. If it can be determined that the manager was using the medication (with or without a doctor’s prescription) while on the job without notifying you, we would recommend the strongest form of punishment under your drug-free workplace policy.
Q: I strongly dislike smoking. Can I refuse to hire someone just because they smoke?
A: Smoking is not a protected activity and smokers are not considered a protected class. So, yes, you could in theory refuse to hire smokers. That said, we caution our clients against denying employment for non-work related reasons, particularly if doing so means you will be less likely to hire someone who is protected by the Equal Employment Opportunity Commission (EEOC). In addition, there are many states and locations that prohibit employers from banning smokers from employment (see the American Lung Association’s Tobacco Policy Project for a list of states).
Instead, we recommend that our clients maintain a strong smoke-free workplace policy and offer smoking cessation programs to existing employees. That way, you will be less likely to miss out on good talent simply because they smoke and you will not run the risk of adversely impacting those who are protected by the Equal Employment Opportunity Commission.
Q: I have a customer service rep that is hourly (non-exempt). She’s a very hard worker and works long hours. It is not uncommon for her to put in a full day, get home, and then work on her smartphone late into the evening. Should I reclassify her as salaried (exempt)?
A: The determination of whether she should be considered exempt should not be based on whether she works from home after hours. Instead, it should be based on whether she satisfies the criteria for being exempt from the National Labor Relations Act. (Google “DOL Fact Sheet #17A” for a list of criteria.)
In the meantime, you need to pay your non-exempt employees for all time worked – even if that work is conducted from home and not at your request. Be sure your customer service rep is tracking and reporting her time and you are paying for her time, including any overtime that may occur as a result of this after-hours work.
Q: We have a non-smoking policy. What should we do about e-cigarettes?
A: On one hand, employee use of non-smoking alternatives is considered a healthier alternative to smoking tobacco. On the other hand, smoke-free e-cigarettes are not FDA approved. They continue the link to nicotine and have been found to emit particles, fragrances and low-level toxins into the environment which can be harmful to those with asthma and other sensitivities. Most large private and public employers are banning e-cigarette use and some states ban their use in public places. Our best advice is the one that is the healthiest for all of your workers. In this instance, that would suggest banning them under your non-smoking policy.
Q. We pay our summer help on a piece-rate basis. We calculate the amount of work they should be able to process in a 1 hour period and pay them the equivalent of minimum wage for that work. If the employee performs less than the required work, is it okay to pay them less than the minimum wage for that work?
A: No, for most non-exempt positions you must ensure that the employee is earning minimum wage. In addition, you also need to make sure the employee is paid time and a half for all time worked over 40 hours in a workweek. Therefore, you will need to keep track of the employee’s time and ensure that they don’t earn less than the minimum wage in your state.
Q: We have a salaried, exempt status employee who has been coming in late and leaving early. Can we dock her pay for the hours she has missed?
A: No. Exempt employees are exempt from the Fair Labor Standards Act (FLSA) and therefor are not paid by the hour but based on the annual salary agreed to. As a result, you cannot dock pay except in limited instances (such as full workweeks in which the employee didn’t work or full workdays when the employee was out sick, etc.). Partial-day deductions for a couple of hours within a workday, as you propose to do in this situation, are not allowed.
Instead, you should treat her tardiness and early absences as part of a disciplinary action, subject to your progressive discipline practices.
Q: School’s out and once again, we’re planning on hiring summer interns to work with us. Is there anything special about unpaid internships that we should know about? We figure the work experience is valuable to them and they seem to agree.
A: Unpaid internships are closely regulated by the US Department of Labor. For it to be a “bona fide internship”, your internship must meet the following requirements:
The internship must provide training that is similar to what would be given to the student in an educational environment.
The internship experience must be designed for the benefit of the intern (not the employer).
The intern cannot displace regular employees, but must work under close supervision of existing staff.
The employer that provides the training can derive no immediate advantage from the activities of the intern.
The employer and the intern must understand that the intern is not entitled to wages for the time spent in the internship.
If your internship does not meet these requirements, your interns should be paid at least minimum wage for their work.
Q: We are considering hiring some teenagers to help us over the summer. Are there regulations specific to child labor that we need to know about?
A: Yes, laws regulating the employment of children exist at both the state and federal level. As always, the federal requirements represent the minimum requirements and states can add additional limitations. According to federal law,
Children under 12 may not be employed
Children between 12 and 16 may be employed in allowed occupations during limited hours within the school year.
Children between 16 and 18 may be employed for unlimited hours in non-hazardous occupations.
There are many exceptions to these rules, including employment by parents, newspaper delivery, and child actors. There are also special rules involving employment in the agricultural sector. To be safe, check with your state Department of Labor to make sure you are compliant with all relevant laws.
Q: If an employee leaves his current employer and starts at his new company and he updates his LinkedIn profile with his new position at his new employer, would that impact a non-solicitation agreement? Clients may decide on their own to move their business based on the notification from LinkedIn.
A: It’s important to remember that LinkedIn is intended to serve as a form of online resume. It is doubtful that the courts would view simply updating his employment status as an active solicitation of your clients given how most non-competes are designed.
If he contacts your clients via LinkedIn to let them know that he’s moved and to discuss with them the possibility of moving their business, that’s a different story. But it is doubtful that simply updating a LinkedIn profile in itself would be considered solicitation.
Q: We have 24 employees and our health insurance is expensive. One of our employees has decided to enroll in the local health exchange because it is less expensive for her. She’s now asking for us to pay her the amount we would have paid for her health insurance. Do we have to do that?
A: No, not only do you not have to do it, we recommend that you don’t do it. As a small business (fewer than 50 employees) you are under no obligation to provide health insurance or to pay your employees to obtain it on their own. Clearly, small group plans can be expensive and your employees may prefer the exchange. But paying her sets a precedent. Would you do this for all your employees? How much will you pay them? For how long? The good news is that she now has a choice in health coverage – a choice that should not become a financial and administrative burden to you.
Q: A few of my employees have shown up sick for work. I really appreciate their dedication but I’d rather they not come to work sick and get the rest of us sick. Can I send them home and require that they use their sick leave?
A: Yes, you can. Recognize that there may be reasons why employees are showing up sick that might include:
Not wanting to use sick or paid-time-off leave
Not being able to afford the lost wages due to illness
Fear that the workload will become overwhelming if work is missed
Fear of disappointing the boss
If you do send them home, reassure them that you want them to take the time to recover and that you will help to ensure their work gets done. Remind them that sick leave is offered so that they will stay home when they are sick. And if they are worried about lost wages, try to identify ways for them to make up the time once they return to health.
Q: What is the policy on closing the office due to bad weather? Do I have to pay my employees if we have to close the office?
A: How you set up your inclement weather policy is a matter of preference and should be spelled out in your employee handbook. Generally, non-exempt, hourly workers do not need to be paid for the time not worked. Should you wish to pay them since it is a circumstance beyond their control, you can certainly do so. For exempt, salaried employees, if you close the office you cannot dock their pay for time not worked but you may be able to request that they take paid-time-off. If they do not have any leave remaining, you must pay them for the time off. Under either circumstance, if the employee is working from home he or she must be paid.
SPECIAL WINTER WEATHER EDITION
Wow, this has been a tough winter and chances are, you’ve been putting your inclement weather policy to the test – presuming you have one to begin with! Here are some of the questions we’ve been asked over the past week and thought the answers might be helpful:
Q: What is a sound approach for closing the office or for closing early due to bad weather?
A: Your primary responsibility is to make sure your employees are safe. Many companies follow the office closure practices of local government. Others make the decision independently. Either way, let employees know your approach and how you will communicate whether the office is open or closed.
Q: Can you require employees to come to work if the governor declares a state of emergency?
A: We never recommend that employers require employees to violate a local state of emergency. If a state of emergency is declared in your area or in the area where your employees reside, you should follow that order. If the state of emergency is for a distant part of the state, use your best judgment with the goal of keeping your employees safe.
Q: What if an employee calls and says they are not comfortable driving in the weather or want to leave the office early due to weather?
A: If an employee feels unsafe driving in poor weather but the conditions don’t warrant an office closure, you should respect the employee’s judgment and not have them drive in inclement weather. In that case, you may request that they take paid leave or that they make up the time later in the week.
Q: What if an employee has to leave because their child’s school let out early?
A: If the office is open, you may require that the employee take paid-time-off, make up the time later in the pay period or, if they are able, to work from home (see below).
Q: Can you make employees work from home if they can't get to the office?
A: If the employee has the capability to work from home, then yes, you may request that they do so. If they are non-exempt, hourly employees, you must pay them for all time that they report having worked from home.
Q: Do you pay part-time employees if the office is closed due to weather.
A: You do not need to pay any non-exempt, hourly employee, whether part-time or full-time, for any time they did not work. However, many companies choose to pay employees if they close the office. Whatever your choice, be sure employees know your policy. And, if your policy is not to pay non-exempt employees, you may want to look for ways for them to make up the time recognizing that loss of pay can create a financial hardship.
Q: Can I dock pay for my exempt, salaried employees when the office is closed?
A: No, you really can’t. You can, however, require that they use paid-time-off. If they are out of paid leave, then they must be paid.
Q: We don’t have an inclement weather policy. What should be in one?
A: If you don’t have an inclement weather policy or would like more information on this topic, click here for more information or give Affinity HR Group a call at (877) 660-6400. And stay safe!
Q. I just learned that one of my employees gave me false identification when I hired her. What do I need to do? Must I notify the authorities? Do I have to fire her?
A. First thing, you should do is correct any IRS forms (wage and tax filings), particularly if she used someone else’s Social Security number. As for reporting her to the authorities, such as USCIS Immigration Services, I strongly encourage you to seek legal guidance to assess your requirement under the law.
There are two issues to consider regarding termination – is she now legal to work in the United States? If not, you cannot legally employ her and doing so is a violation of federal law. If she is now legal to work here (i.e., she has since filed for and received the appropriate work permits) you must weigh her value as an employee with the fact that she was dishonest initially. If you do decide to keep the employee, it is essential that you carefully review all of her documents and check with the Social Security Administration to be sure the name, date of birth and SSN that she provided are correct.
Q. We had an employee take a fall at work. She was out only for a couple of days and had minimal health expenses. Do we have to file this under workers’ compensation? Can’t we just pay her for the missed days and pick up her medical expenses?
A: In a word, no. Federal and state law strictly regulate workplace accidents and injuries and the failure to report accidents and other non-compliance carries very tough financial penalties. Much of workers’ compensation is regulated by the state that you live in but the basics are the same: employers are required to provide workers’ compensation insurance which provides employees with essential medical care, income replacement and disability benefits if necessary.
While workers’ compensation insurance is expensive, there are significant benefits to the employer, not just to the employee. For employers, it is the exclusive remedy for damages and prevents employees from seeking damages through a separate lawsuit. The risk you run by not using workers’ compensation in this case is if the worker later feels her injury caused her more harm (financial or physical) than you provided for there is nothing to keep her from suing you and you will face not only her lawsuit but the onerous penalties for failing to properly comply with workers’ compensation law.
Q: Every December my father delights in distributing bonuses to his employees. Unfortunately, the amount he distributes to each employee varies based on who he likes. Is preferential treatment in discretionary holiday bonuses okay? I’m worried it’s not.
A: You are right to be concerned. In the same way that regular pay is discretionary (managers can set pay according to their discretion), holiday bonuses are discretionary. That said, it is against the law to treat similar employees differently on the basis of age, sex, religion, color, ethnicity, veteran status, disability and, in many states, sexual orientation or identity. While he may not be intentionally discriminating against employees, if his decisions truly are arbitrary he will be unlikely to defend his practices if they result in a claim of discrimination. Instead, encourage your father to establish some non-discriminatory performance standards or goals upon which to base his holiday bonus gifts.
Q: We want to hire a new customer service representative and need to put together an offer letter. What should be in an offer letter and do I really need one?
A: An offer letter is a good practice as it provides all of the critical information related to the employee’s new job. You should be sure to include language that states that the offer is “at will” and that nothing in the offer letter should be construed as a contractual employment agreement. In addition to this language, your offer letter should include:
Position title and description
Wage/Salary and pay cycle information
General benefit and vacation information (specific information should be provided at a later date)
Non-compete, non-solicitation and confidentiality language
Finally, you should recognize that this offer is a legal document and, as a best practice, have it reviewed by legal counsel.
Q: My Account Executive feels that I am micromanaging her and that I don’t trust that she’s working while she’s out of the office. It’s not that I don’t trust her, I just want an accounting of what she’s doing when she’s away. What should I do?
A: The workplace is changing. Many sales people are rarely in the office. Many other types of employees are telecommuting and others are working “flex” hours. Instead of taking an accounting of where each employee is throughout the day, the modern-day manager must now gauge their employees’ performance by their output. For many, this is a difficult transition but the harder you push against this new workplace, the more out-of-step you will appear to your employees. My advice is to decide what level of performance you want to see from your account executive: how many calls; how many visits; how many new orders; how many sales? If she satisfies your expectations, then how, where and when she does it should be of little concern.
Q: I read that effective October 1, 2013, employers will have to provide notifications to their employees about health insurance reform. Does this apply to everyone? What is required?
A: Yes, effective October 1, 2013, you must provide a notice that explains how the new Health Insurance Markteplace works and how employees may access coverage. It applies to any company that is covered by the National Labor Relations Act (pretty much everyone with one or more employee) and with annual sales of $500,000 or more. The good news is that the US Department of Labor has created a notification that satisfies the requirement. You can find it at http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf.
Q: We are hiring a new salesperson and I would like her to take a behavioral test to make sure she’s a hunter. Is that okay to do in the hiring process?
A: Absolutely and it is highly recommended but only under the following circumstances. First, you have to treat all of your candidates/employees similarly. For example, if you are hiring five new salespeople and you only test one that can be problematic. Second, you should be sure to use a test that has construct and content validity – meaning they test what they say they are going to test and they don’t adversely impact any non-minority population. You can ask about validity and adverse impact results of any reputable testing company. We highly recommend TTI’s TriMetrix HD Assessment.
Q: We had a great summer intern and he is now going back to school. We’d like to give him a bonus for his work – is there any problem with doing this?
A: There is nothing wrong with giving a bonus per-se, but realize that, as with all bonuses, it is considered compensation and should be treated as such with tax withholdings. Presumably, you have been paying your intern at least minimum wage for his work unless you offered him a bona-fide internship (most companies that I work with do not have bona fide internships). If you don’t want to create a tax event for your intern, think about giving him a gift card as a thank-you.
Q. Do I have to pay my employees time and a half for work performed on a holiday?
A. It is best to check with your particular state law, but generally overtime is required to be paid only after an employee works more than 40 hours in one week, regardless of whether or not a holiday occurs in the workweek. Whether or not to require employees to work on a holiday is the employer’s.
Q: We have 27 employees and currently provide health insurance. Will we be required to do so in the future? Are there minimum levels of coverage that we will have to provide?
A: For small businesses (fewer than 50 full time equivalent employees) there is no requirement that you provide health insurance. There is, however, a tax incentive for those small businesses that do provide health insurance so you’ll want to check with your tax consultant to make sure you’re benefiting from that incentive. In 2014, the insurance marketplace for small businesses is likely going to change. You should talk with your insurance broker to figure out whether your current policy will still be offered and, if not, what plans will be available to you next year.
Q: One of our employees posted something very disparaging about our company on his Facebook page. He did this on his personal time so I don’t know if we can discipline him for this? Please help as his comments have gone viral and I’m worried about the damage it will do to our reputation in the community.
A: First, if you don’t already have one, you need a social networking policy, which outlines what employees can and cannot do with the Internet and social networking sites in relation to their job. The courts have weighed in on this and decided that some speech on the internet is “protected speech” under the National Labor Relations Act. Even if you are not happy about what the employee said, employer rights are not so clear. Before you take any action against the employee, you should seek help from an attorney or HR consultant to help you draft a policy or help you in interpreting your rights as an employer.
Q. We recently hired a few people that have not worked out due to either personality fit or skill set. These candidates interviewed very well but when they got on the job they were less than stellar and frankly just not the right fit for our culture. In the future, how can we insure we are hiring the right person?
A. To garner more insurance over hiring the right candidate, I suggest you develop a hiring team who will review the candidates – a team approach is very effective. Make sure you have a good set of Interview questions prepared that focus on the technical aspects of the job. Ask “behavioral interview” questions by asking the candidate, “tell me about a time…” Have them tell you about how they have acted, performed and dealt with situations in the past – it’s the best indicator of how they will act in the future.
We also strongly recommend doing behavioral style assessments on candidates to see what their true behavioral style and motivators are. We feel so strongly about this that we won’t do a recruiting project without one. Without this data, you’re really just assessing how well the candidate interviews which is not a determinant of future behavior.