Expanding FLSA Over the Years

Over the years, FLSA has been expanded to include other areas of employee protections, such as restrictions on employing children, and employee documentation and recordkeeping. In recent months, the US Department of Labor released an “Administrative Interpretation” (AI) to clarify the definition of “clothes” under the FLSA.

The Definition of “Clothing”

Currently, the FLSA excludes time spent “changing clothes or washing” at the start or end of a workday from compensable time, and the vague exemption has led to many lawsuits and conflicting court decisions on what constitutes ‘clothes.’ The AI provides clarity by stating that the time spent changing into or out of protective gear or equipment required by law, the employer, or the nature of the job, is indeed compensable.

The AI further clarifies that even if ‘changing clothes’ does not fall under a compensable activity or time, it may still trigger the ‘continuous workday rule’ if the subsequent activities after changing clothes would be compensable under FLSA, activities such as walking, waiting, or other travel time. Employers should review their compensation policies or practices to reflect this change to remain compliant with the law.

The guidelines covered by the FLSA can be confusing, and costly, if not adhered to. Speak with a CPEhr HR Consultant for an audit of your FLSA practices.

Source:  EPLI Pro News, July 2010

1.Define Your Needs.  A Job Description will help you define the level of knowledge, skills and abilities that you are looking for in a candidate.

2. Evaluate Interview Criteria. This should be based solely on job-related criteria.  Does the candidate possess the skills as defined in the Job Description?

3. Know The Laws.  There are many city and state laws, as well as the Fair Employment and ADA Regulations that you should know before interviewing a candidate.

4. Think For The Future. Remember, the employees that you hire today are the leaders that you will employ tomorrow.

If you are looking to hire new employees in the near future, please contact our Recruiting Department for assistance in any aspect of the hiring process.

Strict guidelines govern the employment of minors, with stiff fines imposed for non-compliance. Over 15 years ago, California passed the Omnibus Child Labor Reform Act (AB 1900) which details the working conditions under which minors may be employed. It addresses working hours, conditions, safety, schooling and parental permissions.

However, The US Department of Labor (DOL) recently announced on June 16, 2010, their decision to impose new penalties to employers who illegally employ minor workers. Specifically:

• Employers who employ 12 or 13 year-old minors in violation of the Fair Labor Standards Act (FLSA) will be fined at least $6,000 per violation, more than 6 times the prior penalty.
• Employers who employ minors under 12 years old will be fined at least $8,000, up nearly 10 times the prior penalty.
• Penalties for employing minors under age 14 could be raised to $11,000 under certain conditions.

In light of these strict penalties, it is crucial that employers are informed and comply with child labor laws. For information on child labor laws in your state, please contact one of our Human Resources Representatives.

Source: www.EPLIPro.com July newsletter

Disclaimer

Where to Start

Have a Plan – Clearly Define the Position.  Before you go any farther assessing the skill levels of your leaders, you need to know what your standards are. We usually find these spelled out in a job description.  It gives us a point from which we can measure. What are your expectations from your supervisors and managers.  What do you hold them accountable for?  What skills are a necessity and what skills are a bonus? What is your definition of competent, how do you measure that? Be fair, specific and be realistic in your expectations.

Evaluate their Interest Level. Let’s also look at the interest level of your leaders.  Do they actually WANT to be a supervisor or manager?  There a specific qualities that exist in potential leaders.  Simply taking on additional responsibilities for additional pay is never going to be a strong enough motivator.  You need a person in a supervisory or managerial position who actually LIKES people, is patient and willing to take on the daily challenges that leading people brings to the table.

Match Skill Levels to the Plan. Then, match the skill level of the individual with your expectations.  We are defining two areas: are the skills in place at a level you want?  Are there skills that need to be added?

How To Assess

There are many ways to assess skill levels.  Often it takes an incident to trigger the assessment process. It forces us to pay attention to areas we may have been aware of, but chose to overlook for various reasons.  Usually we recognize a gap between how we expected a supervisor to handle a situation or conduct themselves and the reality of what actually occurred.  This identifies an initial area that needs our attention, but we should be careful to not approach this with a “Band-Aid” mentality.

An example: you have a supervisor who routinely fails to document employee performance issues, is this really a skills development need or simply a lack of awareness about a documentation policy?  Is the lack of documentation because they didn’t know they should or because they decided to not be bothered.  These are two very different issues. On the one hand, we would have a training to demonstrate how to document, why it is important and so forth.  On the other hand, if you have a supervisor who is ignoring policy, the assessment would point us in the direction of a need to change their behavior and understanding of what it means to be a leader representing the company. This might involve a one-on-one coaching or counseling.

Once you have identified the area that requires attention and we are as clear as possible about the underlying cause, and not just the surface issue that has brought it to our attention, we can then proceed with how we wish to implement the training and development process. This is routinely the process that all training and development general assessments go through.  First we define the area of need, focus on the underlying cause and then provide the proper training tool to address the issue.

Other Business Indicators

You don’t have to wait for an incident or problem to surface. There are many other ways to assess the skill levels of your managers and supervisors. A few of these can include:

•    Have sales figures dropped?
•    Has turnover increased?
•    What is the general attendance like?
•    What is the departmental error ratio?
•    Has performance of staff improved, stayed the same or declined?
•    Are customer complaints up, the same or down?

Aside from pulling reports, we can also gather information by being aware of our surroundings and observing our workplace. How are employees behaving?  Are their spirits up?  Is HR receiving a disproportionate number of complaints about certain areas or individuals?  Are employees courteous and cordial with each other or nervous and short-tempered?  Stress can also be a flag that we have a potential for harassment or inappropriate behavior, overbearing management or a general breakdown in the leadership.

When it comes to your observations it is extremely important to know the “pulse” of your workplace.  Surveys are also a great tool for taking the pulse of the work environment.  If individuals are assured of confidentiality, they will be frank.

In our third and final post in this series, we will examine the five methods to train and develop your managerial team.

What is a Manager?

Who are these individuals that are such a vital link in the success of employee relations and the business?  From a legal standpoint, they are considered agents of the company.  We have seen this clearly demonstrated in harassment, discrimination and retaliation cases time and time gain.

Employees look to this level of leadership to effectively and fairly lead them, apply policies and procedures, and to ensure that senior management know the needs and thoughts of the employees.

However, managers are often the Achilles heel of most companies.  Lawyers know that managers not only supervise the staff, but are also the ones to implement, defend and apply the company policies. They are also the individuals who are heavily tasked with duties, other than managing staff. These individuals upon whom we so heavily rely may be new and freshly out of business school, employees who have been promoted into a supervisory or managerial position, or existing managerial level individuals we have brought in from outside.

Expectations

As time has gone by, we have come to expect more and more from our supervisors and managers.  We expect our supervisors and our managers to:

•    Legally interview and hire, knowing what is and is not legal to ask
•    Be gifted interviewers who know how to select the best candidates
•    Have all of the legal ducks in a row if termination becomes a necessity
•    Know the policies and procedures and make sure all staff are following the program
•    Know how to effectively motivate
•    Use progressive discipline as a tool to reengage staff
•    Conduct performance appraisals
•    Maintain the team balance
•    Solve problems and resolve conflicts
•    Know the laws regarding overtime, meal and rest breaks and enforce these laws
•    Be knowledgeable enough about the various leave of absence laws in the state and federal levels to notify Human Resources when a scenario may be unfolding.
•    Maintain an OSHA compliant work environment and hold employees accountable for safety standards
•    Maintain a safe, healthy work environment free from harassment, discrimination, and retaliation, serving as the ultimate ethical role model.

If we expect our supervisors and managers to succeed, we need to make sure that have the tools to succeed, that they are using their skills, and to be sure they want this role to begin with!

In our next post we will discuss the step-by-step process of assessing, and training, your managerial team.

1. Don’t promote people to leadership simply because they are technically competent

Joe is a brilliant programmer who got promoted.  His new position requires that he manage a team of 12 people.  He is not interested in leading people, is generally a “work alone” type of personality, and only desired to do his job well.  He wonders why he is being punished and now finds himself in a job that is slowly killing him.

Solution:  Only promote people who have the technical knowledge AND the potential to lead.

2. Don’t promote people and then assume they know how to lead

You promote Susie to a leadership role and she is very excited, and also scared to death.  Why?  She has never led a team before and doesn’t know how.  It really isn’t that easy.  A leader needs to understand the styles and personalities of the team, tie all these diverse characteristics together into a viable team that understands and fulfills the department/team goals as well as company goals.  That’s a lot of responsibility.  Don’t be surprised if untrained individuals like Susie revert to modeling the negative behavior of her past managers—she has nothing else to go by.  It is not uncommon for newly appointed supervisors and leaders to gravitate to micromanagement.  Their necks are on the line, and they will take all necessary steps to ensure success.  They may be well meaning, but their lack of skills will drive employees away.

Solution:  Have a comprehensive leadership development training program in place to get new managers up to speed.

3. Don’t assume existing managers don’t need development

You may have hired a manager because they have the managerial skills in place (at least according to the resume and how they answered interview questions), but this does not mean that they are a great manager. If they aren’t a great manager, provide them developmental tools.  If they are a great manager, they are going to be interested in continually developing a increasing their knowledge base and skills.  A desire for ongoing learning is a characteristic of great leaders.

Solution:  All leaders should have an individual developmental plan and should receive training annually.

4. Don’t allow mean leaders to lead teams

Mean, surly, demanding, rude, offensive leaders…have we met these people before?  They lead through fear, not respect.  Why is this behavior tolerated?  Because they are great at their job? Because they get results?  Because they have been with the company a long time? These aren’t good reasons and these types of managers will cost you in the long run.  OSHA considers forms of bullying in the workplace as potential violence and there are 16 states considering legislation aimed at managers exhibiting exactly these types of behavior.

In such an environment, you can be certain that the staff they supervise are not performing at their full potential, and that there is underlying resentment and anger. There is a saying: “If you lead through fear, you will have no respect.  If you lead with respect you will have nothing to fear.”

If companies allow their managers to bully their staff, what message is that sending to the employees?  “We allow our managers to treat you like dirt but we still value you,”—yeah right!

Solution:  Provide tools that teach alternate methods of management and put them on notice.

5. Don’t allow executives to think that they don’t need development

How often do you hear, “We can go ahead with the training, but our VP won’t be attending”.  Why is this?  Why isn’t senior leadership interested in the new information and knowledge their direct reports are receiving?  Because attending the training might, a) intimidate the other middle management staff or, b) be considered an admission of incompetence.  Arrogance and ego may often rob senior level leadership of development they might need.

Solution: You can always separate levels of management for trainings, but encourage senior level to actively increase their knowledge base.

6. Don’t wait until you have a vacant leadership role to identify talent

When there is a vacancy at a leadership level the ensuing “plan” is often to fly by the seat of your pants.  There is a brief scramble to slam someone from the department into a temporary role and then hunt for qualified candidates.  Sometimes other managers are asked to take over positions—positions they don’t know anything about, over a team they are unfamiliar with, in addition to their own huge workload.

Solution: Create a contingency plan BEFORE a vacancy develops to prepare new potential managers for the role.

7. Don’t assume once is enough

Once may be enough in certain areas of training.  But understand that many of the areas in which we expect our leaders to be competent are often areas they may not routinely do.  As is true with all of us, one training will become stale and forgotten if not used frequently.  The knowledge we receive stays with us because of our use of that knowledge.

Solution: Plan for regular trainings at periodic intervals to ensure the skills remain sharp and fresh.

Hopefully, by developing strong managerial leaders, we will help develop a strong and vibrant organization.

Below are three common employment scenarios that are often misunderstood which we would like to review:

1. Travel Expenses – Most states require employers to indemnify an employee for expenses incurred in the course of “discharging their duties” for their employers. This means that employers must reimburse for items such as mileage or reasonable travel expenses. The reimbursement is generally not taxable income, and can be paid through a company accounts payable department. Employers who reimburse employees for mileage at the IRS rate are deemed to have indemnified the employee for all expenses associated with using their car for work (gas, insurance, wear and tear, etc.). Therefore, we recommend employers adopt the IRS rate.

2. Tip Sharing – Occurs when a server shares the earned tips with “any employee who participates with the server in rendering some personal service to the patron.” Whether tip sharing is lawful and who may participate is determined by state law. Often, only those who are in the direct line of service may participate, and in other states, employees without direct service (e.g. cooks, dishwashers) may participate. Employers should carefully review their tip sharing practices, and determine if they are being applied in accordance with state law, as there have been many lawsuits regarding this issue recently.

3. Waiting Time – If an employee arrives to work, and is not put to work, but instead asked to wait until work is available, they are considered to be “under the control of the employer.” This means simply, they must be paid for the waiting time. If an employee is instead “on call”, where they are not required to report, and are free to engage in their own pursuits, but must be able to report within a certain time frame, they are generally not owed compensation.

If you have any questions regarding payroll, wages, IRS reimbursement or other employment-related issues, please do not hesitate to contact our Human Resources Consulting experts who will be happy to assist you.

Source: www.eplipro.com June 2010

Disclaimer

What is Included in Religious Accommodation?

Religious accommodation extends its reach into all aspects of religious freedom:

• Expression and displays such as styles of dress
• Wearing or displaying symbols of religious belief
• Taking time off to observe religious holidays (including the Sabbath)
• Allowing for prayer time
• Sharing of one’s beliefs with others

The Prohibition to Discriminate

Following the events of September 11, the EEOC (Equal Employment Opportunity Commission) came out with a strong statement against religious discrimination, impressing upon employers the need to accept all religions and ethnicities. In the words of the EEOC:

Anger at those responsible for the tragic events of September 11 should not be misdirected against innocent individuals because of their religion, ethnicity, or country of origin. Employers and labor unions have a special role in guarding against unlawful workplace discrimination.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, national origin, race, color, or sex. At this time, employers and unions should be particularly sensitive to potential discrimination or harassment against individuals who are – or are perceived to be – Muslim, Arab, Afghani, Middle Eastern or South Asian (Pakistani, Indian, etc.).

The law’s prohibitions include harassment or any other employment action based on any of the following:

• Affiliation: Harassing or otherwise discriminating because an individual is affiliated with a particular religious or ethnic group. For example, harassing an individual because she is Arab or practices Islam, or paying an employee less because she is Middle Eastern.
• Physical or cultural traits and clothing: Harassing or otherwise discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin. For example, harassing a woman wearing a hijab (a body covering and/or head-scarf worn by some Muslims), or not hiring a man with a dark complexion and an accent believed to be Arab.
• Perception: Harassing or otherwise discriminating because of the perception or belief that a person is a member of a particular racial, national origin, or religious group whether or not that perception is correct. For example, failing to hire an Hispanic person because the hiring official believed that he was from Pakistan, or harassing a Sikh man wearing a turban because the harasser thought he was Muslim.
• Association: Harassing or otherwise discriminating because of an individual’s association with a person or organization of a particular religion or ethnicity. For example, harassing an employee whose husband is from Afghanistan, or refusing to promote an employee because he attends a Mosque.

Imposing Religious Views in the Workplace

While laws governing proselytizing are presently a bit murky, the law to reasonably accommodate an employee’s religious views does not require an employer to support or allow an employee to impose his or her religious views on co-workers.  In light of this, care should be taken to ensure that lines are not crossed and that religious respect goes both ways.  Those who are decidedly non-religious or of a different faith should not be subjected to unwelcome discussion of another’s religion or criticized for their opposing beliefs.  Thus, balance and tolerance are imperative in an effort to create, maintain and accommodate an overall harmonious work environment.

Walking this tightrope can be tricky, if not downright dangerous. Contact one of CPEhr’s Human Resources Outsourcing experts to assist you in complying with religious accommodations in the workplace.

Disclaimer

1. Q. Can we give an extra week of vacation to cover any overtime?
A. Providing vacation rather than overtime is not legal under the Fair Labor Standards Act (FLSA).

2. Q. Do general standards exist for exempt employees who do work beyond the normal workweek? For example, if they travel during the weekend for work, is it expected that they would get a day off later in compensation?
A. It is not expected that an exempt employee receive a day off after working on a weekend. Exempt employees are expected to work when duty calls.

3. Q. Can an employer deduct paid benefit leave, such as sick leave or personal leave, in half-day increments from an exempt employee if it is a written company policy?
A. You can deduct less than a day’s time from an exempt employee’s allotted sick time, vacation time, or personal time. You cannot deduct from an exempt employee’s paycheck for less than a day’s absence for sickness, disability, or personal leave.

4. Q. If an exempt employee calls in sick for a whole day and doesn’t have any accrued sick time on the books, can we dock his or her pay for the day?
A. Yes, as long as the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for loss of salary caused by this type of sickness or disability. Remember, though, that you cannot deduct for less than 1 day’s absence.

5. Q. If an employee is exempt, can you still choose to classify him or her as nonexempt and pay him or her hourly with overtime?
Yes. You can classify any employee as hourly and pay the employee overtime, even employees who could otherwise pass the exemption tests.

6. Q. How do you distribute overtime among employees?
A. Distribution of overtime is a constant source of controversy in industry, both union and nonunion. Whether overtime is considered desirable because of the premium pay or undesirable because of the loss of free time, employees of similar skill should have equal opportunity or equal burden for overtime assignments.

A practical method is for the department supervisor to maintain a roster recording each employee’s overtime work. A properly kept roster will prevent unfair distribution of overtime and will help settle disputes. Ordinarily, in maintaining a roster, an employee who declines overtime is charged with a “time at bat,” and his or her name goes to the bottom of the roster.

7. Q. Our workweek is 35 hours, plus we pay lunch breaks of 1 hour each day, totaling 40 hours paid. If our employees work 36 hours and are paid for 41, is that extra hour considered overtime, or can we pay them straight time?
A. You can pay them straight time. The FLSA requires that overtime be paid for each hour worked in excess of 40 hours in a week. Since the lunch breaks are not “hours worked,” they don’t have to be counted toward overtime. Therefore, each employee’s total hours worked in that week would be only 36.

8. Q. All of our employees participate in a day of volunteering. Do we have to pay them on this day?
Charitable work performed at the employer’s request as part of the job or during work hours is considered hours worked. Charitable work will not be considered hours worked if:

1. It is completely voluntary (even if the program is sponsored by the employer).
2. It is performed outside of work hours.

If employees get the impression that their jobs would be in jeopardy or that they would receive fewer perks for failing to contribute to charity work, a court could say that the hours were not voluntary, but were coerced. This time could then be considered hours worked. In addition, employees cannot perform volunteer work for an organization that employs them if the work is similar to that for which they are paid.

(Source: The HR Daily Advisor, www.blr.com)

Disclaimer

The Scenario

Certain positions are maintained in your Company as light duty positions to help keep workers’ compensation costs down. An employee who is currently working in one of these positions has been released by his physician to return to work with no restrictions, and his claim has been closed. You are preparing to return him to his regular position when he informs you that he is unable to perform certain duties in his customary work and cannot return. He confirms that statement with a note from another doctor. Since these positions are reserved for workers’ compensation cases, you refuse his request.

Was this proper?

Yes - You have met your obligation by offering to reinstate him to his original position.

No - Why not?

The Answer:

No – you have failed to consider the ADA and reasonable accommodation, and are risking a disability discrimination claim. The ADA does not require you to create a position, or provide light duty that does not exist. Obviously however, light duty does exist in this case since he has been working in a modified capacity. As our main article discusses this month, you cannot separate the ADA and workers’ compensation unless the employee’s medical condition is not a disability under the ADA definition. You should provide this employee with the Physician/Health Care Provider Form to first determine whether his injury continues to substantially limit a major life activity, and if so, begin the Interactive Process and be ready to extend his light duty status.

Source: EPLI Pro, May 2010 Newsletter

Disclaimer