It’s “What’s Up? Wednesday”. Time to talk about EXEMPT PAY . . .

You asked: Can employers deduct from exempt employees’ weekly salary if they run out of sick time? And do they have to be paid if the office is closed for inclement weather?”

Alex answers:

According to the Federal Labor Standards Act (FLSA), if an exempt (“salaried”) employee performs any work during a given workweek, he/she must be paid his/her full salary for that week. Of course there are a few exceptions. These include (but are not limited to) an absence due to personal reasons; a suspension due to a violation of safety or conduct rules; the first or last week of employment; or when the employee is on a medical leave under the Family Medical Leave Act (FMLA).

As we’ve seen across the United States this winter, the weather can lead to emergency closures for businesses. Keep in mind that if you are forced to close temporarily due to inclement weather, under no circumstances can exempt employees go unpaid. The same rule applies if the exempt employee is out for jury duty. They must not go unpaid.

Time out due to illness for an exempt (“salaried”) employee is a little trickier to navigate.  Generally, the exempt employee must be paid for all absences due to his/her own illness. However, the employer can certainly require the employee to use paid time off (sick, vacation or personal time). In the event that the employee has run out of paid time off or is not yet eligible for it, they must be paid for the days off UNLESS the employer has a bona fide sick leave plan. A bona fide sick leave plan is a plan or policy that has defined sick leave benefits that have been communicated to all employees and is administered impartially. This plan must also allow for a “reasonable” amount of paid sick days for exempt employees. There is no clear definition of “reasonable,” but generally the Department of Labor has considered a minimum of five (5) days of paid sick time off to be acceptable.

In a nutshell, for those employers who do not have a defined, written sick time or paid time off (PTO) policy, you’re going to have to pay exempt employees for all sick days, even if you have given employees sick days and they exhausted them. You can get around this by implementing a defined, clear policy that allows exempt employees at least five days of paid sick time off in a given year.

And finally, keep in mind that if an exempt employee comes into work for a portion of the day (even if it is just 10 minutes) he/she must get paid for the entire day.  It must be a FULL day absence to dock exempt employees pay, even with a bona fide sick leave plan.  Exempt employees get paid full day salary for even small amount of work in a given day.

Last, but not least, none of what is explained above applies to non-exempt (“hourly”) employees . . . they are easier to handle. Simply put, you are only obligated to pay a non-exempt employee for the time that they actually work.

If you have any other questions about employee classifications, send them to hrhelpline@eastcoastrm.com.

EDITOR’S NOTE: Just a reminder that our blog will no longer be accessible through this web address as of February 24, 2014!!! Our new home is the East Coast Risk Management web site at www.eastcoastriskmanagement.com. If you have not subscribed yet or are already a subscriber and haven’t yet re-subscribed at our new location, now is the time! Simply click here and enter your email address in the box to the right of the blog, then hit “subscribe”. Be sure to check your email to confirm your subscription.

HR COUNSELOR’S CORNER IS MOVING!! Don’t be left behind . . .

The HR team at ECRM wants to thank you for reading and following our blog!
We have enjoyed reading your questions and comments and hope you will keep them coming.

PLEASE NOTE OUR BLOG IS MOVING AND WE WANT YOU TO COME WITH US!!

Packing_and_Moving

As of FEBRUARY 24, 2014 (that’s just one week away!) you will no longer find us at this web address. In fact, you can already find us at our new place, conveniently located at home on the ECRM website.

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As always, we hope you will continue to send your questions and comments to hrcounselorscorner@eastcoastrm.com.

The Cupid Cop: When Love Strikes in the Office

by Renee Mielnicki, Esq.Anonymous_Pierced_Heart

Depending on which survey you read, as much as 60% of today’s workforce has engaged in a romantic relationship at work. Of those, about 20% claim to have been romantically involved with the boss. Shocking numbers have also been reported showing that either one or both parties are married and are therefore engaging in an extramarital affair at work.

cupid

There are many theories out there as to why these numbers are so high. Perhaps the growing number of women that continue to enter the workforce has lent to this percentage rise. Others speculate that an increase in the number of hours worked each week has something to do with it. Consider the fact that even if the average worker is working a regular 40 hour work week, he or she still may be spending more time with coworkers than at home. This factor alone may lead to stronger personal attachments to coworkers.

With Valentine’s Day approaching, flowers and candy will soon be floating down the hallways at the office.  Given the poll numbers, as well as the negative effects that these relationships may have in the workplace, employers are left wondering what to do when Cupid’s arrow strikes in the office.

Anonymous_Pierced_Heart Let’s first examine the risks an employer faces when a romance develops between two of its workers.  Relationships between a supervisor and a subordinate carry the most risk both legally and from a business perspective.    Since employers have a heightened standard of liability for sexual harassment committed by supervisors, even claiming consent by the subordinate may not shield the employer from liability.  Subordinates may feel that consenting to a sexual relationship with the boss is the only way to keep their job.  Sex-related conduct that is “voluntary,” in the sense that the person was not forced against their will to participate, may not be a defense to a sexual harassment suit brought by a subordinate against a supervisor.  The question is rather whether the sexual contact was welcome and continued consent was voluntary.  The appearance of favoritism is also an issue.  Other co-workers may think that the employee gets unwarranted preferential treatment.  This can result in resentment which then can reduce overall employee morale and productivity.

Romance between coworkers can also lead to sexual harassment claims, particularly when a decision to end the relationship is not mutual. The scorned party may use poor judgment and continue to pursue the other employee to the point that the advances are no longer welcomed.  That employee could then file a sexual harassment claim since the harassment is occurring in the workplace.  Even if coworker romance doesn’t result in a law suit, trauma from breaking hearts coupled with sharing office space with that former special someone can lead to conflict or reduced productivity for these employees.

Anonymous_Pierced_HeartEmployers have several options as far as being a Cupid Cop in the office.   First, employers can establish an anti-fraternization policy which strictly forbids romantic relationships between any of its employees.  The advantage of such a policy is that the employer can use the policy to help defend itself in the event of a sexual harassment lawsuit.  Pointing to the policy as evidence that fraternization among employees is sticky forbidden, as well as evidence of a sexual harassment policy and employee training, can help defend such a claim.

Before implementing a flat ban on workplace romance, employers should also consider the disadvantages of such a ban.  Employees may feel that the company is dictating rules about their personal lives and is invading their privacy.  This type of policy could also have the “forbidden fruit” effect making these relationships all the more appealing for thrill seekers thereby making the prohibition increase the harm.  Moreover, the employer could lose good employees who want to engage in a personal relationship with a coworker, but choose to leave the company rather than break the rules.

A best practice for employers is to have a policy in place. This policy should, at minimum, forbid romantic relations between supervisors and subordinates since they have a greater Anonymous_Pierced_Heartlikelihood for resulting in sexual harassment claims and are the most difficult to defend.  The “Cupid Contract” is another option for employers wanting to mitigate the risk of sexual harassment claims that stem from office romance.  A Consensual Relationship Agreement, the “Cupid Contract’s” legal name, is a document whereby coworkers declare in writing that they are engaged in a romantic relationship which is welcome and consensual.  The small flaw in this approach goes back to those cheating hearts, like Bill Clinton, who risk public humiliation if the relationship is not kept private.  Enticing these employees to not only disclose the relationship, but to put it in writing, creates a real challenge.

The biggest challenge employers face when deciding what type of policy to implement, or whether to implement one at all, is the realization that we are human first and professionals second. In the survey mentioned above, half of the individuals polled said they would engage in love at the office again, no matter what their employers say. Keeping this in mind, it is left to each employer to decide how best to handle the increasing presence of Cupid in the cubicles.

 

Mid-sized Businesses Get Another Reprieve from Obamacare

Once again, the Obama administration has announced a delay to the employer mandate portion of the Affordable Care Act (ACA). This time, mid-size businesses (those with 50 – 99 employees) will be getting a reprieve. The new health insurance requirements will not kick in for them until January of 2016, pushed back from January of 2015 (which was pushed back from January of 2014).

Larger businesses with more than 100 full-time employees will be allowed to phase in the health care coverage over the next two years. Under the newest revisions, these employers must cover 70 percent of their employees in 2015, followed by 95 percent in 2016 and beyond. Those who fail to do so will face stiff penalties.

Small businesses, those with less than 50 employees, remain exempt from the mandate.

No changes are being reported to the controversial standard for full-time employees. Under the provisions of the ACA, the definition of full-time employee remains at “30 hours or more per week”. Additionally, the White House will issue a separate set of rules in the coming weeks that will address employer’s requirements for reporting their workers’ insurance status to the government.

It’s “What’s Up? Wednesday”. Time to talk about DISCIPLINE POLICIES . . .

You asked:  “Our managers would prefer to leave discipline to their own discretion. Do we have to have a disciplinary policy spelled out in our employee handbook?”

Laura answers:

We appreciate your managers’ desire (and need) for case-by-case discretion when implementing discipline. Rest assured, leaving room for a manager’s discretion does not automatically rule out a well-defined policy. Progressive discipline policies, also called “Corrective Action Plans”, are great tools to help managers identify and correct deficiencies in behavior or performance. Any such policy should include a clear statement reserving management’s right to exercise discretion when applying any disciplinary action set forth in the policy.

 

That being said, we must add an important caveat. No matter how brilliant your policy, it will serve no good purpose if it isn’t applied consistently by well-trained supervisors/managers. If your disciplinary issues are not handled fairly and consistently across the organization, you may find the Equal Employment Opportunity Commission (EEOC) at your door. Leaving each manager to his or her own devices will invariably lead to inconsistent disciplinary actions, which open you up to claims of discrimination. Additionally, the lack of a defined disciplinary process and good documentation could be detrimental when contesting an Unemployment Compensation case in which the termination was for cause.

 

Many employers use a three or four-step progressive discipline policy that may include a verbal warning, a written warning, a one or two-day suspension, and termination. These actions may be applied in order or a manager may decide to bi-pass one or more steps, depending on the severity of the offense. Whatever steps are applied, each step should be documented and become part of the employee’s personnel file.

 

Here are some more tips to keep in mind when discussing disciplinary issues with employees:

 

  • State the problem clearly followed by a clear explanation of the desired behavior.
  •  Keep your side of the discussion short, to the point and be very specific. Do not use generalities to describe the undesirable performance. Talk about the problem, not the person.
  •  Stick to recent events. Always respond quickly to undesired behavior or performance. Don’t let issues get stale.
  • Offer a variety of solutions (encourage the employee to participate in this process).
  •  Agree on the “next step” for this employee and set a date for a follow up meeting to review his/her progress, if appropriate.
  •  Document your discussion! Always!! If it was a verbal, a simple notation in their file is enough. If it was a written warning or a more formal Performance Improvement Plan, get the employees signature on the documentation.

 

The best ways to insure consistent discipline practices is with a clearly defined policy and well-trained supervisors. If you need help crafting a disciplinary policy for your company, give us a call. We’d be happy to help.

 

If you have any other HR questions, send them to hrcounselorscorner@eastcoastrm.com. If you’d like email notification of all blog updates, just click the “subscribe” button to the right.

Disclaimer The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

It’s Not Always a Party When You “BYOD”

By Renee Mielnicki, Esq.

smart phoneLet’s face it.  We live in a technological world.  We are coming to rely on technology more and more every day in both our personal and professional lives.  Laptops, iPhones, iPads, Blackberries and other smart phones and tablets are everywhere.  Most companies are becoming more and more dependent upon modern technology to run their businesses.  Employees regularly use smart phones or blackberries to access their work emails, calendars and other company systems or networks.  In an effort to be more cost efficient and increase productivity, a majority of companies are allowing employees to “BYOD” or “Bring Your Own Device” to work.  BYOD is not only a catchy little phrase, but it’s a trend that is spreading fast in the business world.  Unfortunately, like any other good thing, it doesn’t come without potential pitfalls.

 While the idea may seem nothing but appealing, employers should consider a number of different issues before allowing employees to use their own devices.  The largest concern for employers is the ability of employees to steal trade secrets, reveal customer lists and expose proprietary information in a split second.  Our obsession with social media today coupled with our technology-savvy abilities allows employees to move this type of confidential information from the company system to the public eye with the press of a button. Beyond the loss of private information are potential wage and hour issues.

Employers wanting to follow the BYOD trend should first implement a written policy setting forth parameters around the use of personal devices.  An effective BYOD policy should address company ownership of data, confidentiality, employee privacy, the types of information that can be accessed or stored on the devices and required safety precautions, including password protection and risky applications.  These polices should also define which employees can use their own device as well as the types of devices that are permitted. 

A recent survey revealed that only one-third of companies following the BYOD trend have a written policy.  A carefully crafted policy can act as a deterrent as far as theft of trade secrets or misappropriation of private information.  Employers failing to implement a written policy may be wishing they had when they are forced to partake in costly litigation.  Of course, employers can always choose not to join the BYOD party if they believe the risks outweigh the rewards.

If you’d like help crafting a “BYOD” policy, give us a call at 724-864-8745.

It’s “What’s Up? Wednesday”. Time to talk about Reasonable Accommodations . . .

You asked:  “We have an employee who injured his back many years ago. His doctor has given him a prescription for a special desk chair, to make him more comfortable while at work. Are we [the employer] obligated to provide that chair?”

Laura answers:

Since this request for a new chair is clearly based on a medical condition (as the doctor’s prescription validates), this should be considered a request for a reasonable accommodation. Such a request falls under the Americans with Disabilities Act (ADA), a federal law that was passed in 1990 to protect people with disabilities from discrimination. Title I of the ADA requires employers to provide reasonable accommodations for employees and applicants with disabilities. The key word here is “reasonable”.

 

A reasonable accommodation is a modification to some aspect of the employee’s job (which may include work environment, tools, schedule, work practices, etc.) that will enable a qualified individual with a disability to perform their job or to enjoy equal benefits as any other employee without a disability. Reasonable accommodations must also be considered during the application process, to ensure that a qualified applicant with a disability has equal opportunity to attain the open position as any other qualified applicant without a disability.

If the chair he is requesting is the Cadillac of office chairs and will cost the company thousands of dollars, it may not be a reasonable accommodation based on the size of your company or your budgetary considerations. Such an expense could be considered an “undue hardship” on the company and would become unreasonable. If that is the case, and this chair is simply out of your reach, you are not obligated to provide that chair. However, you should engage in an informal dialogue with your employee to explore other options. Perhaps there is a more reasonably priced chair that would offer similar support or function. If other job modifications are feasible (such as scheduling options or changes to his work methods) that might alleviate the stress on his back, you should also discuss these options. Just make sure that your chosen accommodation is effective.

 

It is certainly in everyone’s best interest for you and your employee to find an affordable chair that satisfies his request or to agree on another effective accommodation. The sooner you act on such a request, by engaging the employee in the interactive process or by accomplishing the accommodation requested, the less likely you are to lose a valued employee or to violate the ADA.

 

If you have any HR questions, send them to hrcounselorscorner@eastcoastrm.com. If you’d like email notification of all blog updates, just click the follow button at the bottom of the window.

Disclaimer The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.