Tag Archives: Human Resources

What makes a great workplace?

January 9, 2017

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Human beings are social animals, and work is a social institution. Work can be a place where long-term relationships are formed. So what makes someone stay at their job for a long time?  For a company to be successful and retain employees there needs to be trust between the employee and workplace.  Building trust and having respect for employees can make a great workplace.

To build trust, it is heavily relied on the leadership or upper management of a company. As stated in Gallup’s research, “Employees don’t leave companies, they leave managers and supervisors.”  Employees should be able to look up or learn from their managers.  Managers should be able to believe their employee has what it takes to do the job.  Whether you are an employee in customer service or the CEO of the company there should be engagement with one another.

Employees are curious about how their company measures up with other companies. How a company measures up with other companies will determine if the employee stays or goes. Here are some things to help determine if your company is a great place to work and help retain employees;

  • Growth opportunities – Managers should notice the employee’s talent and move them to the direction/position to do their best work.
  • Challenges – Challenges keep employees excited about work. Research or projects should be part of the employee’s task.
  • Respect – Treat all people fairly. Build trust with employees. Be positive. Show recognition.
  • Perks – Not all perks are the same for everyone.  It could be office with a window view or simply having free coffee in the café.
  • Pay– Includes annual reviews with increases.  Bonus opportunities offered.
  • Work/Life balance – Offer flexible hours for employees to work. Work from home option offered.
  • Technology – Tools for employees to do their job and continue to learn.
  • Benefits – Medical, dental, life insurance, tuition reimbursement, retirement, etc.  The difference between what the company and employee pays for each of these.

Not every company will have all of the moral boosting factors listed above.  It is a competitive job market and people are looking into what a company offers before making a job decision.  What a company offers will help someone make a choice in a company but then it is up to company to keep the employee happy.

Every CEO of a company would love to hear their employees leave for the day shouting “I love my job and can’t wait to come back tomorrow!”  But to hear this, the company needs to make the employee feel valued.  The employee must enjoy their work and the company.  It might seem simple but it is not.  And making a great workplace will not happen overnight.  Just remember that having happy employees will retain employees and make the workplace a better company.

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Mid-year Benefit Plan Election Changes: Required or Optional?

January 5, 2017

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Plan elections are typically irrevocable for the entire year. However, HIPAA requires employers to recognize special enrollment rights during the plan year and the Internal Revenue Service (IRS) provides specific instances when an employee may make a midyear election change. Both are commonly called “qualifying events” but employers may confuse which midyear changes are permissive (IRS) and which are required (HIPAA).

HIPAA Special Enrollment Rights

HIPAA provides employees and their families with “special enrollment rights” to enroll in group health coverage. These special enrollment rights allow individuals to come onto, but not off, the plan midyear. Think of it this way: HIPAA special enrollment rights give a person the right to force their way onto a plan.

Most employer plans are subject to HIPAA because it applies to plans with two or more participants at the beginning of the plan year. Employees must be offered the same benefits at the same rates that would be available if they were enrolling for the first time. Depending on the special enrollment event, employees will have either 30 or 60 days to exercise their special enrollment right to sign up for coverage.

An individual who experiences a loss of eligibility for other coverage will have 30 days to request enrollment. A person will have a special enrollment right if they lose eligibility in any of the following situations:

  • Dependent ceasing to fit the definition of a “covered” dependent;
  • Divorce or legal separation that results in the individual losing coverage under spouse’s health insurance;
  • Reduction of hours that trigger loss of eligibility for health insurance;
  • No longer living or working in the HMO’s service area.

An individual who experiences a life event will have a special enrollment right if they request enrollment within 30 days after the event. Life events include:

  • Marriage
  • Birth
  • Adoption
  • Placement for adoption

Employees and their dependents also have a special enrollment right when they lose coverage under a state Children’s Health Insurance Program (CHIP) or Medicaid or who are eligible to receive premium assistance under those programs. Under this special enrollment right, the employee or dependent must request enrollment within 60 days of the event.

IRS Permissive Election Changes

The IRS allows (but does not require) employer plans to pick and choose from a set list of permissive election changes.  These election changes will allow individuals to come on and off the plan midyear. Employers may choose to allow all of the events, none, or only a select few. Employers must officially adopt the permissive events in their plan documents before allowing these changes. The permissible midyear election changes include:

  • Change in Status
  • Cost Changes with Automatic Increases/Decreases in Elective Contributions
  • Significant Cost Changes
  • Significant Coverage Curtailment (With or Without Loss of Coverage)
  • Addition or Significant Improvement of Benefit Package Option
  • Change in Coverage Under Other Employer Plan
  • Loss of Group Health Coverage Sponsored by Governmental or Educational Institution
  • 401(k) Election Changes

Each event has additional requirements that must be satisfied before a permitted midyear election change may occur. Occasionally these events will overlap with a HIPAA special enrollment right. In those instances, the employer will need to follow HIPAA regulations and allow the special enrollment right.

Special enrollment rights and permissive election changes are often confused. They also frequently occur. So it’s important for benefit administrators to be familiar with the rules and their plan documents in order to correctly administer their plans.

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Employer “Gifts” Are Probably Taxable Income

December 9, 2016

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Want to be a real downer at this year’s office party? Remind your co-workers that the holiday bonus they received – even if in the form of a gift card – is probably taxable income.

IRS Code Section 102(c) includes in gross income any gift given from an employer to an employee. Therefore, gifts from employers to employees are taxable, unless they are de minimis fringe benefits. Cocktail parties, group meals or property given with a low market value are examples of de minimis fringe benefits. So good news – you won’t be taxed on your company’s holiday party! There IS such a thing as a free lunch. At least in the tax code.

Cash and cash equivalents, however, are clearly taxable income. 26 C.F.R. 1.132-6(c). The reason is that it is easy to determine the value of cash or a gift card, so it’s easy to account for the additional taxable income, whereas it is significantly harder to determine the value of a bottle of wine or other property. If the employer traditionally gives employees a Christmas ham (which could be a de minimis fringe benefit) but decides to distribute gift cards to a grocery store instead, that gift card would be taxable income.

A newer spin on this employer conundrum is wellness incentives. The EEOC has issued new rules about providing wellness incentives to employees. Even before those rules were finalized, however, the IRS reminded employers that they “may not exclude from an employee’s gross income payments of cash rewards for participating in a wellness program.” Chief Counsel Memorandum, 4/14/16 Those cash rewards include premium reimbursements. While payments for medical care (such as health insurance) are excludable from income through a cafeteria plan, “any reward, incentive or other benefit provided by the medical program that is not medical care . . . is included in an employee’s income” unless excludable as a de minimis fringe benefit. Examples of de minimis fringe benefits given as part of a wellness program could be a T-shirt, water bottles or key chains. Those de minimis items would not be taxable income.

So the bottom line is that anytime an employer gives cash or cash equivalents to an employee, it isn’t giving a gift; it’s giving additional taxable income.

 

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Overtime Rule On Hold (For Now)

November 29, 2016

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Last week, employers had a lot to be thankful for. On November 18, the IRS gave employers additional time and flexibility to complete their 1094/1095 filing obligations. More significant news came on November 22, when a federal judge issued a preliminary injunction preventing the Department of Labor (DOL) overtime regulations from taking effect on December 1 as planned.

Judge Mazzant of the Eastern District of Texas ruled in favor of a group of 21 states and a collection of business entities who sued the DOL, challenging its authority to enforce the overtime rule. Accordingly, he issued a preliminary injunction to preserve the status quo, preventing the regulations from taking effect.

This is almost certainly not the last shoe to drop in the ongoing overtime regulation saga. A federal judge issues a preliminary injunction if the plaintiff (the party bringing the lawsuit) can show, among other things, a substantial likelihood of success on the merits of the case and that the potential harms to the parties and public weigh in favor of the injunction. In this case, Judge Mazzant found that the plaintiffs were likely to prevail because the Fair Labor Standards Act (FLSA) did not clearly give the DOL the authority to implement a new salary threshold, particularly the automatic update provision in the final regulation. Interestingly, the Court noted it was “not making a general statement on the lawfulness of the salary-level test for the EAP (executive, administrative, and professional) exemption.” (Order, Dkt. 60, FN 2). Much of the reasoning in the opinion, however, could be used to question the legality of the salary threshold.

What does the court’s ruling mean? It means employers do not need to comply with the overtime rule on December 1, 2016. It does not mean – at least not at this point – that employers will never have to comply with the overtime rule. The DOL issued a statement indicating its strong disagreement with Judge Mazzant and indicated it is weighing its legal options.

They don’t have many. Whether the DOL immediately appeals the ruling or continues litigating the next phase of the case – the permanent injunction – it’s almost certain that we will not have a final resolution this year. And with President Elect Trump set to be inaugurated in January 2017, it’s unlikely that any legislation will provide clarity before then.

So if you’re an employer who has not taken any action to comply with the overtime rule – you’re in luck; you can continue with a wait and see approach for the foreseeable future. If you are like most employers that have already made plans, adjusted salaries and/or converted employees to hourly positions – you’ve got some difficult choices to make. Before “undoing” any of your changes, it’s prudent to wait and see what action the DOL takes in the next month or two. If it becomes clear that the overtime rule will never take effect (a real possibility) then you need to balance the potential cost-savings of undoing your changes against the impact that will have on employee morale, retention, etc.

Employers should resist the urge to make sweeping decisions in response to this ruling. But additional time to comply – or the possibility of never having to comply – certainly gives employers more flexibility.

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Exploring ThinkHR

November 17, 2016

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If you missed our webinar entitled “Exploring ThinkHR” you can check out the recording by clicking this link. Explore ThinkHR

And if you have questions or would like information on how to get access to ThinkHR, please contact our HR Consultants at hrconsulting@jwterrill.com.

 

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Federal Contractors & Close Friends

September 30, 2016

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While the overtime changes have been stealing the headlines lately, there is another significant change on the horizon for federal contractors. The Department of Labor (DOL) issued the Paid Sick Leave Rule  (Executive Order 13658) for federal contractors and it takes effect on January 1, 2017. The ruling requires all employers with federal contracts (new or replacement of expired contracts) on or after January 1, 2017, to offer their employees at least 56 hours of paid sick leave per year. Sick Family

A federal contractor is a person or entity that contracts with the federal government to provide services, supplies, or other work. While that may seem like a general definition the DOL has clarified that the Paid Sick Leave Rule applies to four major categories of contractual agreements:

  1. Procurement contracts for construction that are not subject to the Davis-Bacon Act (i.e., procurement contracts for construction under $2,000);
  2. Service contracts;
  3. Concessions contracts, including any concessions contracts excluded from the Service Contract Act; and
  4. Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

Furthermore, any subcontract of a covered contract that falls into one of these four categories is subject to the Paid Sick Leave Rule.

If you are not an applicable federal contractor or subcontractor the rule does not apply to you. The federal contract employer can either grant (frontload) 56 hours of paid sick leave at the beginning of each accrual year, or use the accrual method, employees accrue one hour of paid sick leave for every 30 hours worked on a federal contract.  The choice on how to provide the benefit will be completely based on the operation of the organization.  While frontloading may be easiest to administer it could incentivize more absences.  On the other hand, if you have more exempt employees, frontloading may be preferred.  Employers may also use both methods: non-exempt use the accrual and exempt use the frontloading.  The particulars would really depend on the situation.

The Paid Sick Leave Rule requires physician certification, as most leave policies do, and it covers the employee own illnesses and family members illnesses. Interestingly, it also covers “an individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”. This is where the ruling gets interesting and challenging.  The definition of “affinity of close association” includes: an individual who was a foster child in the same home in which the employee was a foster child for several years and with whom the employee has maintained a sibling-like relationship; a friend of the family in whose home the employee lived while she was in high school and whom the employee therefore considers to be like a mother or aunt to her; or an elderly neighbor who is like a grandfather to the employee, and, a close friend “to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship, even though the individuals might not be related by blood or formally in law.” So in this respect, the Paid Sick Leave Rule is broader than existing law and most employer policies.

Employers who frequently work on federal contracts should consider updating their employee handbook and/or paid sick leave policies to conform to the new rule.

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EEOC Wellness Notice

September 30, 2016

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As employers continue to develop wellness programs at the workplace, it is important that EEOC, ADA and GINA regulations are met. These regulations require wellness programs that collect health information to provide a notice to the participants.

What notice should be provided?

The EEOC has provided a sample notice that can be tailored to the organization and distributed or the employer can provide their own notice. Employers that provide their own notice should refer to the EEOC website for guidance, as the regulations are very specific as to the information that must be included in the notice.

Who receives the notice?

Under the final rule, employers must provide notice to all wellness program participants if health information is collected health through:

  • Biometric screenings
  • Health risk questionnaires
  • Other means (for example, testing percent body fat at a health fair and collecting the data to use for future programming)

When should the notice be provided?

The notice is required for plan years beginning on or after 1/1/2017. The notice needs to be provided before the employee submits any health information so that employees have enough time to decide whether or not they want to participate. Employers may provide the notice at open enrollment, but it should also be provided prior to the data collection.

How is the notice communicated?

The employer can determine the best means that is most appropriate for employee communication.

Further information can be found in a previous TerrillConnect article.

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House Votes to Delay New Overtime Rule

September 30, 2016

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Back in May, the Department of Labor (DOL) issued final rule under the Fair Labor Standards Act (FLSA), which raised the minimum salary threshold to $47,476, or $913 per week for exempt employees. In other words, to treat an employee as exempt, an employer must pay the employee a salary of at least $47,476 a year to meet the new salary basis test. In addition, the employer will still be required to ensure that the employee’s job responsibilities meet the exempt “duty test,” which the new rule does not change. The duties test is simply a test to ensure the actual job duties meet the job requirements for an exemption. Exempt employees have always had to satisfy the salary basis test and the duties test; the DOL rules just raised the dollar amount for the salary basis test. That rule is currently scheduled to take effect December 1, 2016.

On September 28, 2016, the U.S. House of Representatives voted 246-177 to delay the effective date of the DOL rule for six months to allow businesses more time to adjust. Some Representatives are also concerned that the rule would stunt seasonal hiring and that small businesses would be forced to lay people off right before the holiday season.  The Senate introduced a companion bill the same day, which would also need to pass before the delay could be considered by the President.

Many believe the President will not support the six month delay. “We all know the bill is not going anywhere,” said Representative Jim McGovern (D – Mass.) The Office of Management and Budget (OMB) issued a statement on September 27 stating that the “administration strongly opposes H.R. 6094, which would delay implementation of the Department of Labor’s overtime rule until the middle of next year, endangering a critical step toward promoting higher pay and undermining efforts to allow workers to better balance their work and family obligations.” The OMB also stated that if the bill passed the Senate, the President would veto it.

So what should employers do in response to Congress’ efforts? Nothing. Employers should continue planning as if the overtime rule will take effect on December 1, 2016. The odds of a delay do not appear favorable at this time, so counting on additional time for compliance would not be a prudent strategy. Of course, if anything changes, we will write about it here on TerrillConnect.

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EEOC Issues Final Wellness Program Rules

June 16, 2016

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“The more I know, the less I understand. All the things I thought I knew, I’m learning again.”  – Don Henley, The Heart of the Matter

Most HR professionals know that asking employees about medical conditions or family medical history is a big no-no. But asking those types of questions in connection with a wellness plan may be okay, provided you comply with the EEOC’s newly issued rules. Needless to say, wellness programs and their new rules are turning HR common knowledge on its head.

Before outlining the new rules, we need to define four key terms: wellness programs, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and the Health Insurance Portability and Accountability Act (HIPAA).

  • Wellness Programs – refers to a health promotion and disease prevention program or activity offered to employees as part of an employer-sponsored plan. Some wellness programs are connected to medical plans employers offer to their employees; some are not. Many wellness programs ask employee participants to undergo health risk assessments, biometric screenings or provide information about their medical conditions. Others do not. This distinction is critical under the new rules.
  • ADA –Employees are protected from disability discrimination if they “can perform the essential functions” of their job “with or without reasonable accommodation.” The ADA also restricts employers’ ability to obtain medical information about employees, and the new rules define those restrictions for wellness programs.
  • GINA –Generally speaking, it prohibits employers from discriminating on the basis of genetic information, which includes family medical history. GINA also restricts the collection of genetic information. Like with the ADA, the new rules define those restrictions for wellness programs.
  • HIPAA – sets federal standards for maintaining the confidentiality of protected health information.

The best way to understand the new rules and their application is to divide wellness programs into 3 groups:

  1. Those that ask participants to provide medical information about themselves (such as through health risk assessments, biometric screenings, medical questionnaires, etc.). These wellness programs must comply with the more restrictive ADA rules.
  2. Those that ask spouses and/or dependents to provide medical information about themselves. These programs must comply with the GINA rules.
  3. Those that do neither.

Generally speaking, wellness plans that include a health risk assessment, biometric screening or other health questionnaire all seek medical information, and trigger the most restrictive of the new EEOC rules. Because the rules themselves are very intricate and complex, a complete summary of them would be far too long and complicated for one blog post. The seven guidelines below, however, summarize the most common rules applicable to most wellness programs.

     1.  Must be “reasonably designed to promote health or prevent disease.”

The EEOC will determine this based on the facts and circumstances, but in general wellness programs must be truly concerned with the well-being of its participants. The program must have a reasonable chance of improving health or preventing disease, and cannot simply be a method for collecting health information on participants for budgeting or cost-shifting purposes. This means that if a wellness program collects health information, it must either: (1) provide the results of the risk assessment or biometric screening to the participant with follow-up information or advice, or (2) use the information to tailor the program to improve the health of participants.

     2.  Must be voluntary.

The employer cannot coerce, threaten or harass employees into participating in the wellness program. They cannot take adverse employment action against employees who choose not to participate, and they cannot deny or limit coverage for those who do not participate.

Beginning January 1, 2017, the employer also cannot offer inducements that exceed 30% of the total employee-only cost of coverage. The 30% cap applies to cash and in-kind inducements. The EEOC does not distinguish between incentives and penalties – both are inducements, and both are subject to the 30% cap. Generally speaking, the 30% is calculated from the lowest-cost health plan, unless the employer requires participation in a specific health plan in order to participate. In that case, the cap is calculated from the specified plan. If the employer offers a stand-alone wellness program and no health plan, the cap is calculated from the lowest cost Silver plan available in state marketplace for the employer’s principal place of business.

There are special rules for tobacco surcharges. If a wellness program simply asks if a participant uses tobacco, the cap jumps from 30% to 50% of the cost of self-only coverage. However, if the program tests for the presence of nicotine or tobacco, the 30% cap applies. The distinction is that the test is a medical exam which triggers heightened protection under the ADA, whereas simply asking about tobacco use does not solicit medical information.

     3.  Medical information obtained must be kept confidential.   

This should be a no-brainer. The employer sponsoring the wellness program should insulate itself from receiving personal information of participants. The new rules restrict the employer to receiving only aggregate medical information, except to the extent necessary to administer the health plan.

An employer also cannot condition participation in the wellness program on a waiver of the participant’s ADA rights or the participant’s agreement to the dissemination of his or her medical or genetic information.

The EEOC has indicated that compliance with HIPAA privacy rules would be sufficient to assure compliance with the new wellness rule.

     4.  Beginning in 2017, employees must receive a notice about the wellness program.

The notice must be written in a clear, understandable format and must describe:

  • The type of medical information obtained.
  • How the medical information will be used.
  • Restrictions on the disclosure of the information.
  • Employees or other parties with whom the information will be shared.
  • Methods the employer will use to prevent unauthorized disclosure.

The EEOC has indicated it will prepare and publish a model notice for employers to use. It is not yet available, but when it is it will be a good starting point for employers.

     5.  Participants must consent, in writing, before participating.

The authorization form requirements track the notice requirements described above. Specifically, the authorization must:

  • Be written in a manner likely to be understood by the participant.
  • Describe the type of information that will be obtained.
  • Describe how the information will be used.
  • Describe restrictions on the disclosure of the information.

     6.  Incentives cannot be conditioned upon the provision of genetic information.

If the wellness program asks for genetic information (family medical history), the notice and authorization described above must clearly that that those questions are voluntary. The notice and authorization must also state that any wellness program incentive or bonus can be earned even if the genetic information questions are not completed.

     7.  Employer must provide a reasonable accommodation for employees with a disability.

The ADA requires employers to make reasonable accommodations to allow employees with disabilities to enjoy equal benefits and privileges of employment. That obligation extends to participation in wellness programs. The accommodations must be reasonable and the employer must provide them unless doing so would impose an undue hardship on the employer. Whether any particular accommodation poses and undue hardship is based on the facts and circumstances of the situation, but the burden is on the employer to prove the undue hardship exists.

For example, if attending a nutrition class is part of a wellness program, the employer must provide a sign language interpreter to enable a deaf employee to participate unless the employer can show that doing so would be an undue hardship.

 

Wellness programs can be a fantastic way to engage employees and create a healthy work environment. But prudent employers should consult with a wellness consultant before launching a program to ensure they are complying with the newly-announced rules.

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FLSA Final Overtime Rules Are Out

May 19, 2016

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The Department of Labor’s (DOL) final rules on Fair Labor Standards Act (FLSA) exemptions have been long-anticipated. Yesterday afternoon, the DOL released them, which prompted hand-wringing from businesses and philosophical debates from politicians. Those things are likely to continue for quite some time – at least until the rules take effect on December 1, 2016.

Here’s what you need to know about the new rules before they become effective:

  • FLSA is the federal law that requires employers to pay overtime for hours worked over 40 in a week. There are many exemptions to the overtime rule, however, and the employer has the burden of correctly applying the exemption if it chooses to use one or more of them.
  • One important element in many DOL exemptions is the “salary basis” requirement. Many of the exemptions have additional requirements, such as the exercise of discretion (Administrative Exemption) or directing the work of at least two full time employees (Executive Exemption). Other exemptions have other requirements. In order for a position to qualify for an exemption, all of the requirements must be met. These requirements are commonly referred to as “duty tests.” The new rules do not change any of the duty tests for the exemptions.
  • The new standard salary requirement will be $47,476 annually, or $913 per week. This means that to qualify for an exemption, the employee must earn at least $47,476 in addition to the exemption’s other requirements. The old annual salary threshold was set in 1975 at $23,660. The DOL initially proposed a salary threshold of $50,440, which represented an inflation-adjusted estimate of the 1975 rule.
  • The new salary requirement for the Highly Compensated Employees (HCE) Exemption will be $134,004. The DOL initially proposed a salary threshold of $122,148.
  • Salary thresholds will now update every three years. The rules establish a procedure to ensure salary thresholds will continue to update for inflation. This will keep salaries more relevant in today’s economy rather than waiting 40+ years for an adjustment. The updates will keep the standard salary threshold at the 40th percentile of weekly earnings for full-time employees. These updates to the HCE salary threshold will maintain it at the 90th percentile.
  • Employers can now include nondiscretionary bonuses and commissions when calculating the employee’s salary. Employers have never been allowed to include such payments before. But there are caveats. First, the bonuses and commissions cannot constitute more than 10% of the employee’s salary. Second, the bonuses and commissions must be paid at least quarterly (or more frequently). Annual bonuses may not be included.

So, what do you do now? The obvious starting point is to identify the employees in your organization that will be impacted by the new rules – those who are paid on a salary basis but earn less than $47,476 per year. In December, those employees will no longer be exempt from overtime. How do you address those employees? Here are a few strategies to consider:

  • Raise their salaries. Great insight, right? This option is probably the easiest, and depending on the employee’s hours and salary, it could be the more affordable than the alternatives. For example, if a supervisor is currently classified as exempt, paid $46,000 per year and works 50 hours per week, it would be less expensive for the employer to raise the employee’s salary rather than paying overtime for 10 hours per week. ( $46,000 annual salary is $22.12 per hour for 40 hours and an overtime rate of $33.17 for 10 hours for a total of $1,216.53 per week or $63,259 annually).
  • Convert them to hourly employees. This sounds obvious, but there are a few practical things to consider. For starters, you’ll need to convert their salaries into hourly rates. You will also need a way to document their hours. Unfortunately, this is often overlooked. Solutions can be as simple as employee timesheets or as advanced as installing time-keeping software on employee computers or a computer kiosk. Either way, maintaining a record of the number of hours worked, along with the employee’s input into the creation of the document will help ensure compliance with the FLSA.
  • Redistributing work. Employers who convert their impacted workers to hourly employees should also consider the employees’ workloads. Employers are allowed to prohibit employees from working overtime without prior authorization, but employees must be paid for any overtime actually worked (even if doing so violates the employer policy). Employers can discipline employees for violating the policy. If the employee simply has too much work to complete in a 40 hour workweek, however, the employer may find productivity dropping. Redistributing workloads will help prevent the need for overtime work.

Change is often difficult, but the DOL rule change is also an opportunity for employers to review and correct any misclassified employees.

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New FMLA Poster Available

May 4, 2016

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In April 2016 the Department of Labor (DOL) released a new Family and Medical Leave Act (FMLA) poster employers may use in their workplaces. FMLA requires FMLA-covered employers to display an FMLA poster “prominently where it can be readily seen by employees and applicants for employment.” The DOL has advised that the prior, 2013 version of the FMLA poster still fulfills the posting requirement until further notice. Accordingly, employers are not required to change their current posters at this time.

The new FMLA poster does not include new information, but the DOL has explained that the poster layout is more reader-friendly. The new poster is available on the DOL’s website.

 

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Are you violating the NLRA with your employee handbook?

April 19, 2016

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As we always say in HR Consulting, litigation shapes the way we manage our risk. Having a solid handbook is an excellent way to help mitigate risk. However, a poorly written one can not only be a mecca for employee lawsuits, but can also land employers in hot water particularly with the National Labor Relations Act (NLRA).

You may recall, we wrote an article in 2014 about the National Labor Relations Board (NLRB) and the strong stance it took against any handbook policy that appeared to hinder an employee’s right to unionize. At the time, the concern was related to the employer’s inclusion of a confidentiality agreement in the employee handbook. The point is that the NLRA allows employees to discuss things that are traditionally considered confidential like salary and working conditions and took issue with the use of the term confidential.

Flash forward to December 2015 and the NLRB is again taking issue with a handbook policy. This time the NLRB examined Whole Foods’ policy restricting the recording of meetings and conversations. With the popularity of electronic devices like iPhones and iPads in the workplace, Whole Foods felt they needed a policy prohibiting an employee from recording a meeting without prior approval.

The NLRB found Whole Foods’ policy unlawful. According to the Board, photography and audio or video recording in the workplace, as well as posting of photographs or recordings on social media, are protected by Section 7 rights to concerted activity as long as “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present”.  Examples of such activity were given by the NLRB to include recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions.  Even though the policy did not specifically pertain to these types of activities the NLRB felt the “no recording” policy was too broad and therefore unlawful.

It is difficult for employers to know just where the line is between lawful and an unlawful policy. The bottom line is that employers should be familiar with the NLRB’s many rulings on employer policies and ensure that their handbooks reflect the appropriate language.

The HR Consultants at J.W. Terrill are well versed in the NLRB’s decisions and offer an employee handbook rewriting service to give you the necessary protections while keeping you compliant. If you would like information regarding our handbook rewriting service, please contact J.W. Terrill’s Human Resources consulting group at hrconsulting@jwterrill.com.

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