Consider impact of daylight-saving time for hourly worker

Many people are familiar with the axiom “spring forward and fall back” to help them remember in which direction to change the clock during daylight-saving time transitions.

However, questions may linger for employers about pay practices for those employees that are “on the clock” during the time change.

Non-exempt employees, who are generally paid on an hourly basis, are entitled to be paid for the hours they actually work. For example, in the fall when employees may only be scheduled for an eight hour shift but end up working nine hours due to the time change, they must be paid for nine hours. In the spring, if a normal work schedule constitutes eight hours, but the employee works only seven hours due to the time change, the employer need only pay seven hours of time worked.

Some companies may decide to pay a full eight hours so that their employees don’t lose regularly expected compensation, but there is no obligation for them to do so.

Employers and scheduling supervisors should not “balance out” time over the year in which an employee works during the time change in the spring and in the fall. Hours should be paid within the time period in which they are worked.

Other questions about compensation or pay practices? Our professional staff at BCN can help. Call us at 800-891-9911 if we can assist you and your business.

 

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Sue Kester, HR Manager

Expect stepped-up FMLA enforcement during 2016

The Department of Labor intends to step up Family and Medical Leave Act enforcement in 2016, including more on-site visits by federal investigators, according to a recent statement by U.S. Department of Labor – Family and Medical Leave Act Branch Chief Helen Applewhaite.

This means employers should pay close attention to their own employment policies as they relates to the FMLA. This includes carefully documenting individual employment situations.

The Family and Medical Leave Act of 1993 (FMLA) allows eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance. Eligible employees are entitled to 12 work weeks of leave over a 12-month period for:

  • The birth and care of a newborn child within one year of birth.
  • The placement with the employee of a child for adoption or foster care and care for the child within one year of placement.
  • A serious health condition which leaves the employee unable to perform the essential functions of his or her job.
  • To give care for a serious health condition affecting the employee’s spouse, child or parent.
  • Any qualifying demand or emergency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered” active duty;

or 26 work weeks of leave during a single 12-month To care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

BCN Services can assist you in determining if you are a covered employer and if an employee is eligible for FMLA as well as administration of the leave. If you have questions, please contact us at 1-800-891-9911.

 

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Alicia Freeman, Product Manager

Why do I need Employment Practice Liability Insurance?

If you are a PEO client of BCN, your company is provided with employment practice liability insurance (EPLI), a benefit that may not be used every day, but is important nonetheless.

This specialized insurance is designed to protect against losses incurred in litigating and settling wrongful employment practices liability claims. It covers such things as discrimination, breach of contract and wrongful discharge suits, which usually are not covered by general business liability insurance.

In today’s business world, the threat of being sued is an everyday reality. The dangers are even more real if your company doesn’t’t have a dedicated human resources department or formal training to deal with myriad laws, rules and regulations that exist to protect employee rights.

Statistics show that in a bad economy employment lawsuits increase dramatically. One disgruntled worker can put your entire business at risk if he brings a lawsuit or discrimination charge against you — whether valid or not. The cost to defend the allegations alone could put your company out of business, not to mention the price you would pay if you lose.

The top 5 reasons for EPLI coverage

  1. Employee lawsuits and discrimination charges are excluded under standard general liability policies;
  2. Every employer, large or small, can be the target of legal action from past, present, and prospective employees;
  3. Owners’, directors’ and officers’ personal assets can be at risk;
  4. Employees file more than 90,000 complaints each year with the U.S. Equal Employment Opportunity Commission;
  5. Employees can easily file lawsuits, often with no risk or cost to them.

While you are responsible for deductibles and legal costs not covered by the policy,  BCN Services has made it easier and cost efficient in 2013 to mitigate your expenses of a claim by negotiating an arrangement with our carrier to allow us to provide the initial investigative work to our clients on EPLI claims with our law firm’s oversight, saving significantly on legal expenses.  To minimize claims, BCN’s trained and certified HR professionals will help guide you through employee relations and other compliance issues thereby greatly reducing your risk.

Remember to always call us to report any incident which could give rise to a claim immediately to the BCN Human Resource Department.  For further information about EPLI,  contact us for assistance.

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Kate Douglass, Senior HR Generalist

Be cautious asking for confidentiality during workplace investigations

As an owner or manager of your company, complaints, allegations of harassment, or other types of grievances will inevitably come to your attention from time to time, meriting an investigation

In the past, you may have been involved with investigations where an employee was required to maintain confidentiality except with the person doing the investigation. Confidentiality is beneficial in an investigation if you are attempting to learn each person’s individual take on a situation and not have employees collaborating and tainting what is shared by their conversations.

But recent guidance from the National Labor Relations Board (NLRB) states that employees are allowed to discuss investigative situations as they are allowed to discuss job-related factors such as wages, job conditions and work assignments. The NLRB considers this a legally protected right of employees. There have been judgments against companies who have required employees to sign confidentiality statements when participating in investigations, especially when a company terminates an employee in the process of enforcing those statements.

Workplace investigations are best handled by BCN Services, which has professional staff to assist you and can provide an impartial, professional investigation of the situation. BCN will work with your management team as appropriate, and make recommendations designed to help defuse situations and protect the company from legal issues down the line.

Your management team will likely be involved in these discussions, too. It’s important that the BCN HR staff and your mangers be on the same page in approaching the investigation and what’s required or asked of employees.

The bottom line for employers: It’s acceptable to request confidentiality and explain how it will help the integrity of the investigation process, but use caution when prohibiting the discussion of sensitive information. Any disciplinary action plans related to the sharing of information should be carefully reviewed with the experts at BCN prior to taking action.

Trisha Crigger, Human Resources Generalist

U.S. Supreme Court decision on gay marriage impacts some employer-sponsored benefits

On June 26, 2015, the U.S. Supreme Court of the United States ruled that the 14th Amendment to the United States Constitution compels all states to issue marriage licenses to two people of the same gender and recognize legal marriages between two people of the same gender.

The Obergefell v. Hodges decision was sweeping, all but ending a decades-long battle to bring marriage equality to gay couples. Thirty seven states and the District of Columbia already recognized same-gender marriages before the ruling. Michigan was among 13 states that banned gay marriage through a state constitutional amendment defining marriage to be between one man and one woman.

With this historic decision, all U.S. states and territories can no longer ban same-gender marriage either by state constitutional amendment or popular ballot vote.

Although the decision comes from the highest court of the United States, there are many unanswered questions. The decision did not address matters of discrimination based on religious beliefs, nor did it lay out a step-by-step plan for employers and health insurers to handle the new legislation. This blog specifically focuses on the impact the SCOTUS decision has on employer-sponsored benefits.

Fully insured health plans are now legally bound to recognize same-gender marriages exactly as they would marriages of opposite genders. Although 2013’s United States v. Windsor SCOTUS ruling extended favorable tax treatment on premium dollars paid by employees towards same-gender spouses and dependents coverage, that ruling did not extend those benefits nationwide. The favorable tax treatment of premium dollars now applies to same-gender married couples in every U.S. state and territory.

Small-group employers have always had the option of excluding spousal coverage under their benefit plans. Now, however, the exclusion must be uniform and not directed at same-gender marriages. If an employer disqualifies spousal coverage or requires spouses to take insurance through their own employer prior to enrolling in the company’s plan, the condition must be applied to both same-gender and opposite-gender spouses.

Employers with self-funded medical plans are not forced by the Obergefell ruling to allow same-gender spouses to enroll in their group health plan. It is advised that employers with self-funded plans consider the potential for litigation if they choose, at this point, not to allow same-gender spouses to enroll in their group health plans.

There are still several roadblocks and gray areas due to this ruling: How do groups handle their plan if they already allowed “domestic partners” to enroll? Is there a time limit that vendors will allow domestic partners to become legally married before they disallow coverage? If employers choose to continue allowing domestic partner coverage for same-gender couples, they should be sure to open it to opposite-gender domestic partners, if they did not before.

As always, BCN Services will guide clients and employees through these complexities as they occur. Please encourage your employees to call us with any questions they may have. Timeliness can play a factor, depending on the specific situation

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Frank Lewandowski, Partnership Manager

When is a worker considered an Independent Contractor?

Using independent contractors can be a good way for companies to meet their business goals. However, doing so may put you at risk as the U.S. Department of Labor investigates many instances of contractors as employees.

Addressing this misclassification has become a key government priority. DOL spokeswoman Mary Beth Maxwell recently called “the misclassification of workers as a serious problem for affected employees and employers and to the company.” Additionally, the DOL’s Wage and Hour Division continues to focus with great urgency on misclassification by launching many related investigations and lawsuits.

If your company relies on independent contractors, be proactive in auditing how you use them. Once you have determined the classifications, be sure to update independent contractor agreements. Although these agreements do not conclusively establish independent contractor status, these agreements are an important factor in determining who can be classified as an independent contractor.

The agreements should establish some of the following for the worker and you should enter into a new agreement for each project:

  • Uses own equipment and tools
  • May perform services for other businesses
  • Can assign tasks to others
  • Provides his/her own liability insurance and benefits
  • Not eligible for employee benefits
  • Has his/her own business and tax ID number
  • Has the opportunity to receive bonuses or chargebacks

Do not provide independent contractors with job descriptions, business cards, computers, office space or training.

No single factor will determine the outcome of a misclassification inquiry and every work relationship may be assessed differently. But most federal judges apply the following test to determine if a worker is an employee or an independent contractor.

  • Does the worker or company control the details of the work?
  • Does the worker or company supply the equipment needed to do the work?
  • Does the worker have an opportunity to make a profit or suffer a loss in performing the work at issue?
  • Is the relationship between the company and worker permanent or temporary, and is the work of an “on again/off again” nature?
  • Does the job require worker skill and initiative?

An additional way to help create a good-faith defense and show that the business practices comply with the FLSA is to perform an FLSA classification audit.
Source: SHRM.org

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Debbie Strahle, Partnership Manager

Be cautious when hiring or firing employees due to ADA protections

A new and increasingly utilized protection under the Americans With Disabilities Act (ADA) has been defined as “Associational Discrimination.” The Equal Employment Opportunity Commission explains it this way:

“The association provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. 

“This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member, or anyone else with whom the applicant or employee has a relationship or association.”

Ensure hiring or firing is not associated with disability

Employers need to be cautious when deciding not to hire an applicant or terminating employees. They must ensure that the decision is not associated with knowledge of an employee’s family, friend or partner with a disability that they perceive would require the employee to miss work, for example.

An employee who is eligible for the Family and Medical Leave Act (FMLA) is granted legal rights to take leave to care for a family member with medical certification. However that requirement only applies to employees who have been with the company for at least one year (cumulatively) and have worked 1,250 hours in the previous 12 months.

Under the ADA, any employee, no matter the length of service, is eligible for ADA protections. Even an applicant for an open position has these protections.

Under the ADA, an employer who makes an adverse employment action could be charged with “associational discrimination.” This could include failing to hire an applicant or terminating a current employee due to an assumption that the employee will miss time from work to care for a family member that has a disability.

An employee must be able to perform essential functions of a job. However, recent court cases have also held that  an employee that does not fall under certain attendance or tardiness policies (an exempt employee, for example) cannot be held responsible if that  employee regularly starts the work day late due to caring for a family member with a disability.

Disciplining or terminating an employee who is not subject to attendance or tardiness policies could result in an associational discrimination charge.

Structure policies and handbook to limit exposure

Structure your company handbook and policies to limit exposure to associational discrimination claims and to train hiring managers to avoid decisions that leave the company vulnerable.

Additionally, it is imperative to review all factors when terminating employees. Consider the following points:

  • Was the employee qualified for the job at the time of the adverse employment action?
  • Was (s)he subjected to an adverse employment action?
  • Did the employer know at the time that (s)he had a relative or associate with a disability?
  • Did the adverse employment action occur under circumstances raising a reasonable inference that the relative’s or associate’s disability was a determining factor in the employer’s decision?

As always, contact your BCN Services Partnership Manager to arrange manager training, handbook or policy development and/or guidance in questionable employment situations.

 

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Jeff Walsh, Partnership Manager

Pregnant employee may entitled to protections under the ADA

In 2008 the Americans with Disabilities Act (ADA) was amended. The Americans with Disabilities Act Amendments Act (ADAAA) significantly expanded protections under the ADA. The definition of disability was expanded to include temporary impairments.

If an active impairment substantially limits a major life activity, the employee is protected by the ADAAA. The ADAAA has also expanded the definition of “Major Life Activity” to include things like digestive function or circulatory function. Other things like lifting, standing or bending can be considered major life activities.

Many common conditions related to pregnancy may qualify and require an employer to engage the employee to seek reasonable accommodations to allow the pregnant employee to continue to work or to allow her unpaid leave of absence rather than losing her job. This applies to employees that are not eligible for Family and Medical Leave Act or those that have already exhausted their FMLA eligibility.

Take these two examples:

  • A pregnant employee has severe nausea (morning sickness) and can’t get to work for her morning shift. As a digestive function issue that is severe enough to impact a major life activity (in this case working), the employee may be entitled to an altered schedule, reduced hours, telecommuting, or unpaid leave of absence while the condition exists.
  • A pregnant employee is told by her doctor that she can’t lift more than five pounds. Lifting is a major life activity so the employee may be entitled to accommodation such as light duty work, a temporary transfer to a job that does not require lifting or an unpaid leave of absence.

There are many other possibilities of conditions affecting a pregnant employee that can be considered severe, even if short term. If you are not sure whether a condition may be protected under the ADAAA, contact BCN services for guidance.

3 key things employers need to remember

First, if an employee indicates that they cannot perform their job due to some impairment, they do not have to use the term “ADA” or even request an accommodation. If their statement leads you to believe they may have an impairment, you need to determine if this is a potential ADA situation.

If so, it is imperative to engage the employee in a dialogue to discuss the situation and determine if there are any possible accommodations that are not an undue burden to the employer. Remember that pregnancy is a limited duration so, if nothing else, an unpaid leave of absence will not likely be considered an undue burden to the employer.

Secondly, the employer is entitled to determine whether an accommodation is a medical necessity.  But be aware that the ADA limits who may contact an employee’s physician.

For example, the employee’s supervisor is prohibited from contacting the physician. Don’t risk a violation of the ADA by contacting the employee’s physician. Your BCN Services Partnership Manager or Human Resources Administrators will be able to assist you in these situations. The HR department at BCN Services has the knowledge and experience to make those communications for you to avoid any claims of interference in the employee’s ADA case.

Third, there may be more than one accommodation that could allow the employee to continue working. During the interactive dialogue, you are not required to accept the employee’s suggestion. Multiple options providing for the same outcome allow the employer to determine which accommodation should be provided.

ADAAA provisions are being revised by court decisions on a regular basis. This new legislation will continue to be interpreted by courts and will impact employers. BCN Services continues to monitor legislative changes and court rulings to provide our clients with best practice guidance.

If you have questions about whether a pregnant employee can perform essential job functions or needs accommodations, BCN Services is always available to provide advice and guidance.

 

 

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Jeff Walsh, Partnership Manager

Pay attention to regulations for employee breaks and travel

Federal law doesn’t require employers to provide breaks for rest or meals.  However it does regulate how breaks are provided and compensated.  State law also often provides additional employee protections regarding break time requirements.

Most federal regulations derive from the Fair Labor Standards Act (FLSA), which applies to all employers in defined areas, regardless of how many employees the employer has. This is different than many federal laws that cover workplace standards.  The FLSA does not protect many salaried employees.

Breaks & meal periods:  When employers offer short breaks between 5 and 20 minutes, federal law considers these compensable work hours included in the sum of hours worked and considered when determining overtime. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that:

  • the authorized break may only last for a specific length of time,
  • any extension of the break is contrary to the employer’s rules, and
  • any extension of the break will be punished.

Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and are not compensable as work time.

Sleeping time and certain other activities:  An employee on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee on duty for 24 hours or more may agree to exclude bona fide, regularly scheduled sleeping periods of not more than 8 hours from hours worked. This is provided that adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless the employee sleeps a minimum of 5 hours.

Lectures, meetings and training programs:  Attendance at lectures, meetings, training programs and similar activities need not be counted as working time, but only if four criteria are met: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

Home-to-Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home-to-work travel, which is not considered work time.

Home-to-work on a special one-day assignment in another city: An employee who regularly works at a fixed location is given a special one-day assignment in another city and returns home the same day. The time spent in traveling to, and returning from, the other city is considered work time. However, the the employer may deduct, or not count the time that the employee would normally spend commuting to the regular work site.

Travel that is all in a day’s work: Time spent by employees traveling as part of their principal activity, such as driving from job site to job site during the workday, is work time and must be counted as hours worked.

Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who eats lunch at his/her desk and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.

These are some general guidelines.  If you have additional questions or need help for your individual business situation, please contact your BCN Services Partnership Manager.

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Debbie Strahle, Partnership Manager

More states, cities, and counties enact ‘ban-the-box’ laws

There are now 13 states and 66 cities restricting employers from inquiring about an applicant’s previous criminal background on job applications.

Most recently, the District of Columbia, Illinois, and New Jersey have passed “ban-the-box” laws.  Ban the box references the check box found on employment applications that asks an applicant if he or she has ever been convicted of a crime.

A common misconception is that if an employer removes the check box, they are abiding by the law.  The law more specifically restricts employers from asking applicants about their background until an interview or conditional job offer has been made to the applicant.

No two laws are exactly the same. Each state, county and city that has enacted the law has different restrictions and criteria. For some states, the law is for only for public sector employers.  It is important to check the law in each city or state that impacts your company.

The 13 states with statewide ban-the-box laws as of September 2014 include: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Rhode Island and also Washington D.C.  States that have not enacted such a law may have restrictions on how and when background checks can be conducted or may have cities or counties with laws affecting businesses in their jurisdictions.

If you have additional questions about ban-the-box policies in various state, city and/or county or other HR matters, please contact your BCN Services Partnership Manager. Email us at hr@www.bcnservices.com call 734-994-4100 or contact us here.

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Kateyln Walzbecker, Partnership Manager