Employment Laws HR Professionals Should Know

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human resource laws human resources laws 24 Employment Laws HR Professionals Should Know

In order for an organization to avoid costly legal fines and other penalties, compliance with employment laws is essential. Below are the employment laws that every HR professional should know.

1. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act is administered by the Equal Employment Opportunity Commission and covers an employer who has fifteen (15) or more employees and prohibits discrimination against any individual on the basis of race, color, religion, sex, and national origin.
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The Smart Guide to Managing Smartphones in the Workplace

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Smartphones and mobile devices have become critical business communication tools in the workplace, making it essential for organizations to establish policies. This guide summarizes important things to consider in managing legal risks of smartphone use outside of work, providing smartphones to employees, creating smartphone policies, and allowing smartphone use at work.

Smartphone Use Outside of Work & FLSA Compliance

Increasingly, non-exempt/hourly employees may use smartphones and mobile devices after hours for work, which creates challenges for complying with the Fair Labor Standards Act (FLSA). In fact, a 2013 employment lawsuit involving policemen in Chicago seeking overtime pay for "off-duty" time using their Blackberrys clearly illustrates this risk.
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6 Q&As: Managing Flu Season in the Workplace

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6 Q&As: Managing Flu Season in the Workplace

With flu season in our midst, many employers face challenges in managing sickness in the workplace. These challenges can include managing absenteeism, reducing or managing the prevalence of sickness in the workplace, supporting employees who must care for sick children, and in more rare cases, dealing with longer-term medical issues. Here is a Q&A guide on some of your most frequently asked questions related to these topics.

Q: How many sick days do employers typically provide?

A: On average, organizations usually provide 6-8 paid sick days annually, though many employers incorporate sick time into a paid time off bank.

Some industries tend to provide more sick time, particularly healthcare and non-profit organizations, which typically offer double the amount of sick time that other organizations provide.

Q: How should we handle pay for exempt employees who are sick?

A: Under the Fair Labor Standards Act (FLSA), if an exempt employee misses less than one full day of work due to illness, you may not deduct his or her pay for the absence. This means, if they go home early or come in late due to illness, you may not dock their pay. Conversely, with hourly employees, your organization may deduct pay for any hours not worked due to illness, including a full day or less than full day.

Also, under FLSA, your organization is not obligated to provide pay for vacation or sick days (unless other state laws mandate this). Nonetheless, many employers provide these benefits to help handle pay situations when employees are sick.

Q: How can we prevent sickness from spreading in the workplace?

A: The workplace can be fertile ground for sickness to spread with employees working in close proximity to one another, especially common colds and flus. Here are a couple common ways to reduce the likelihood of this happening:

  • Provide flu shots once a year
  • Encourage sickness prevention via hand sanitizers and office cleanliness
  • Offer the ability for sick employees to work from home
  • Allow sick employees to stay at home and use their sick time if they are ill or contagious
  • Support employees' well-being by providing wellness resources/education and work-life balance

Q: What should we do when employees need to care for sick children?

A: Missing work to care for sick children is a challenge facing many working adults, who often feel they don't have enough paid sick time or flexible work arrangements to cover the days they need to take care of them.

There are a number of options you can offer in these circumstances. First, you can allow them to work at home, if possible, to care for their child. Second, you can provide a back-up/sick child care option or resource for employees to use. Third, you can allow them to use paid time off, make up work hours, work a flexible schedule, or provide family leave. Finally, if the situation warrants a serious health condition, providing FMLA leave may be advisable.

Q: What should we do about excessive absenteeism?

A: As a business, you need to institute and enforce acceptable boundaries for absenteeism in order to run your business smoothly via internal policies and procedures, such as an attendance policy.

But excessive absenteeism due to illness may actually be due to a legitimate medical condition which is covered by federal and state laws. In these cases, employers are obligated to comply with the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), and must pursue the appropriate course of action.

For other more common illnesses and issues that are acute in nature, if an employee is not complying with your policy or if you have a legitimate reason to believe that abuse is taking place, you may pursue whatever disciplinary action is necessary, so long as it's consistent with past precedents and documented policy.

Q: How should we handle issues of work coverage when an employee is sick?

A: Make sure your organization has the appropriate back-up coverage for when an employee is out of the office ill. Succession and workforce planning of this nature is essential to the ongoing productivity in your organization.

Q: How should we manage a longer-term illness?

A: Unfortunately, sometimes illnesses that affect the workplace are not just common flus and colds. Prolonged illness brings many unanticipated challenges to the workplace: arranging for medical leave (short term disability, FMLA, personal leave, etc.) preparing for return to work, dealing with short or long-term accommodations, and handling staffing or work coverage issues.

These situations can often be stressful and difficult for the employer and employee alike, so it's important to approach them with as much patience and support as possible. Usually, when employers make collaborative arrangements with employees to help them in these situations, to the extent that it business operations are not significantly affected, they tend to be effective.

Employee illness is one of the most common issues employers face in the workplace, and in our experience, one of the most difficult ones to manage. Approaching this flu season and employee illness in general in a supportive but tactical manner can help you better manage your employees, their needs, and those of your business.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

View ERC's Absence Management Practices Survey Results

This report summarizes the results of ERC’s survey of organizations in Northeast Ohio on practices related to attendance and unscheduled absence.

View the Results

4 Ways to Handle Attendance & Pay During Bad Weather

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attendance policy for exempt employees 4 Ways to Handle Attendance & Pay During Bad Weather

The snow is finally here (sorry, but it was inevitable) and with it comes issues of absenteeism, tardiness, pay, and FLSA compliance.

  1. How will you consider absences during bad weather?
  2. Should you forgive tardiness in these circumstances?
  3. How will you handle pay for both exempt and non-exempt employees for missed work time due to weather?
  4. What do you need to know to stay compliant with FLSA?

Here are guidelines for your most pressing HR problems resulting from inclement weather, supported by research from our 2015 ERC Inclement & Adverse Weather Practices Survey.

1. Absenteeism

Over half of organizations consider absences excused for both non-exempt and exempt employees, if those absences are due to weather conditions. In addition, just over one-third of organizations determine whether these absences should be considered excused or unexcused on a case-by-case basis.
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3 Frequently Asked Questions about FLSA

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Employers usually have a number of questions about the Fair Labor Standards Act (FLSA), which governs wage and hour rules - when and how employers are obligated to pay employees for time worked or not worked under law. Here are answers to 3 frequently asked questions about issues related to FLSA.

1. Can we dock exempt employees' pay?

Some employers seek to dock or withhold pay as a disciplinary measure for exempt employees, particularly for reasons such as absenteeism, tardiness, or performance. Under FLSA, however, employers may not reduce an exempt employee's pay for showing up late, leaving work early, or because they did not perform the quality of quantity of work expected of them. Other guidelines regarding the docking of exempt employees' pay include:

  • If your organization has a written paid sick time, paid leave, or other time off policy, it may reduce the employee's sick or paid leave account for absences due to illness, injury, or medical appointments. 
  • Once an employee's sick or paid leave account is exhausted for these absences, you must pay employees for partial day absences unless they qualify under FMLA and are using intermittent leave. 
  • If your organization does not have a sick or paid leave policy and it is implied that employees receive pay for their absences, it cannot deduct pay for full or partial day absences for exempt employees.
  • Exempt employees who are new to the organization and not yet eligible to receive holiday or vacation pay, should generally be provided with it, given these above guidelines.

There are situations where your organization has the ability to dock or reduce pay of exempt employees, such as if they did not work some days during their first or last week of employment, were absent for an entire week, or received an unpaid disciplinary suspension. Deducting pay for exempt employees is usually permissible under these circumstances, however, you can only dock pay if employees are not working (i.e. not checking email, voicemail, etc.) in these situations.

2. For what time do we need to pay non-exempt employees?

Unlike exempt employees who are paid to complete a job, non-exempt employees only need to be paid for time worked, so naturally, the issue of what constitutes "working time" for non-exempt employees is a common question and issue employers face. Job-related or required training, department or staff meetings, and time spent on work travel are all considered working time for non-exempt employees and must be paid. This even includes seminars, training, or meetings on job-related topics held after hours.

In addition, unauthorized working time may also be considered time worked. Even though an employer may not specifically authorize an employee to work, non-exempt employees must be paid for all work they complete. For example, if a non-exempt employee works at home off-the-clock on their own accord, that time must be considered hours worked even though the time was unscheduled. Additionally, if an employee starts work early or stays late, that time must also be paid. Non-exempt employees must be paid for all hours worked.

Employers are increasingly facing this issue when non-exempt employees access work at home, such as via electronic devices like a Smartphone. For example, if a non-exempt employee sends an email to another employee outside of work hours, they are entitled to be compensated for the time spent responding to that email.

3. Is this job exempt or non-exempt?

Employees exempt from both the minimum wage and overtime pay requirements not only include those that fall under the Department of Labor's  exemptions for executive, administrative, professional, outside sales, and certain computer professionals, but seasonal employees who are employed at certain seasonal amusement or recreational establishments also fall under those exempt from these provisions. Correctly classifying employees as exempt or non-exempt can be tricky given the many guidelines for exemptions.

Terming employees "hourly" or "salaried" can commonly lead to issues of misclassification. Salaried employees are not automatically "exempt" and hourly employees are not automatically "non-exempt." Also, a professional, highly-skilled, or managerial-related job tile (such as engineer, analyst, administrator, or supervisor) does not sufficiently guarantee exemption. Employers need to evaluate employees' specific job duties (regardless of how they are paid) and their job title to determine exemption status, as well as use specific tests to determine their status.

Outdated job descriptions can commonly lead to issues with FLSA compliance so it's important to regularly update them, determine their accuracy, and conduct FLSA audits or evaluations to determine if a job is exempt or not. Job descriptions should accurately depict what an employee actually currently does in the position because they are the most crucial element to deciphering a position's FLSA status according to exemption tests.

FLSA is a difficult and complex law to administer in the workplace, and as a result workplace violations are easily made. Understanding the common pitfalls faced by other employers, however, can help your organization stay compliant with the law's many provisions.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

8 Resources Every HR Professional Should Know About

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We’ve compiled a collection of eight (8) of our favorite HR resources – free comprehensive tools and information that many of our members find valuable for common tasks like staying compliant, administering FMLA, or finding and supporting employees.

1. Staying Legally Compliant

The Department of Labor (DOL) offers a variety of e-law Advisors, interactive tools that provide information about a number of federal employment laws. Employers typically find these tools very helpful in providing greater understanding of compliance and employment law information. Specific e-law Advisors include FLSA, H1-B, Health Benefits Advisor, OSHA, Drug Free Workplace, Contractor Compliance, and more. Similarly, the DOL also provides an Employment Law Guide that helps employers create policies for their handbook.

2. Accommodating Employees

Employers frequently need to support employees through difficult conditions and circumstances. Whether you’re accommodating employees to be compliant or to better support employees as you create a great place to work, the Job Accommodation Network (JAN) is an ideal resource that provides ideas and examples on what level of accommodations and flexibility are appropriate for different situations. It also helps employers better understand a variety of disabilities and psychological/medical conditions that impact their workforce.

3. Administering FMLA

Leave administration, particularly FMLA, is one of employers’ greatest responsibilities and challenges. Employers are frequently looking for resources surrounding administration of this law to help them administer it. This site is one of our members’ favorites as it highlights all of the most common forms, fact sheets, and general guidance for administering family medical leave required by the law.

4. Creating and Updating Job Descriptions

O*Net is a comprehensive, free resource for job analysis and job description information. It provides detailed information including a summary of a job, alternate job titles, tasks, tools and technology used, knowledge, skills, abilities, work activities, and work context. It even contains information on interests, work styles, work values, wages and employment trends, and education/training requirements relevant to a specific job. The tool is useful for employers that are creating job descriptions and supports a range of other HR functions like hiring and performance management. The Dictionary of Occupational Job Titles is also another ideal resource for job related information, included within O*Net.

5. Developing Employees

Career One-Stop has all the components of a comprehensive career development service (without the cost). Employees can explore careers, assess themselves, write job descriptions, evaluate and profile their skills, and find developmental programs and resources. This tool, as well as the Ohio Workforce Informer, Riley Guide, and BLS Career Guide to Industries, are other valuable career development tools for employees to utilize when developing themselves and can complement employers’ career development programs.

6. Staffing and Workforce Planning

Employers often seek information about local employment trends that impact their business for staffing and workforce planning purposes. While the Bureau of Labor Statistics (www.bls.gov) provides ideal national information for this purpose, most organizations don’t realize that the state of Ohio provides a labor market website that details information about local employment trends and projections, current employment statistics, supply and demand, and skills/training. In addition, Ohio Means Jobs is a free website to search for candidates and post jobs that also helps employers recruit and staff.

7. Auditing Wage & Hour Practices

FLSA compliance is one of ERC’s most common questions and an area where many employers may find themselves non-compliant. In the event of a Wage & Hour audit, the DOL provides a checklist of items requested. This checklist is not only ideal for organizations being audited by the DOL, but also for those that want to prepare for an audit. You can download this checklist here.

8. Posting Requirements

The DOL makes posting requirements available to employers including information about what organizations must post, citations and penalties, and other information. Click here to view these requirements. Employers can also download PDF posters on this site.

In conclusion, the Department of Labor and other governmental agencies can offer free resources and support for your organization. With vast amounts of information, online tools, free training and webinars, and access to experts, they can be very helpful for employers and particularly HR departments – often in ways that many organizations don’t anticipate.

Additional Resources

HR Training
Gain even more crucial skills and resources to be successful in your HR role through various ERC HR training courses. For more information on these informative training courses which cover all aspects of HR including employment law, compensation, benefits, performance management, orientation, communication, please click here. To view other upcoming HR programs, click here.

HR Help Desk
ERC’s Help Desk staff is exceptional at working with governmental agencies to answer employers’ questions, resolve problems, and locate information, resources, and forms to meet your needs – especially when you don’t have time to do the research yourself. Just e-mail hrhelp@yourerc.com for assistance.

HR Practices
Benchmark how your HR practices compare to other Northeast Ohio employers by participating in our Policies and Benefits Survey. This survey covers benefits, compensation, recruiting, hiring, communication, training, development, and safety practices. Click here to participate.

Other HR Resources
In addition to resources discussed in this article, ERC members enjoy an array of additional resources related to compensation, benefits, and policy information; HR Help Desk service, sample forms, job descriptions, and policies; cost-savings (and free services provided by some of our Preferred Partners); and more. Click here to find out more about the benefits of being an ERC member.