State Minimum Wage Increases for 2019 (Map) from BLR.com

Minimum wage increases will affect numerous states across the country in January 2019.

Under the Fair Labor Standards Act (FLSA), the current federal minimum wage is $7.25 per hour, but the FLSA does not supersede any state or local laws that are more favorable to employees. Therefore, if a state or municipality has a minimum wage that is higher than the federal minimum, employers subject to the state or local minimum wage law are obligated to pay the higher rate to employees working there. The minimum wage for federal contractors in 2019 is $10.60 per hour.

The map below shows the states that are increasing their minimum wages, including the new rates and amounts of the increases as of the date of publication of this article. We also provide a listing of the states increasing their minimum wages and the effective dates of the changes below the map.

State Minimum Wage Changes Effective December 31, 2018

New York: New York City (NYC) large employers (11 or more) $15.00. NYC small employers (10 or fewer) $13.50; increasing to $15 12/31/19.

Long Island and Westchester $12.00; increasing to $13.00 12/31/19; $14.00 12/31/20; $15.00 12/31/21.

Remainder of New York state $11.10; increasing to $11.80 12/31/19; $12.50 12/31/20. Annual increases for the remainder of New York state will continue until the rate reaches $15 per hour, then the rate will increase on an annual basis.

Fast food employees in NYC $15.00. Fast food employees outside NYC $12.75; increasing to: $13.75 12/31/19; $14.50 12/31/20; $15.00 7/1/21.

State Minimum Wage Changes Effective January 1, 2019

Alaska: $9.89 per hour.

Arizona: $11.00 per hour. Increasing to: $12.00 1/1/20. Local laws may require different minimum wage rates.

Arkansas: $9.25 per hour. Increasing to: $10.00 1/1/20; $11.00 1/1/21.

California: $12.00 per hour with 26 employees or more; $11.00 per hour with fewer than 26 employees. There are scheduled future increases. For 26 employees or more the minimum wage rate is increasing to: $13.00 1/1/20; $14.00 1/1/21; $15.00 1/1/22. For 25 employees or less the minimum wage rate is increasing to: $12.00 1/1/20; $13.00 1/1/21; $14.00 1/1/22; $15.00 1/1/23. Local laws may require different minimum wage rates.

Colorado: $11.10 per hour. Increasing to: $12.00 1/1/20.

Florida: $8.46 per hour.

Maine: $11.00 per hour. Increasing to: $12.00 1/1/20. Local laws may require different minimum wage rates.

Massachusetts: $12.00 per hour. Increasing to: $12.75 1/1/20; $13.50 1/1/21; $14.25 1/1/22; $15.00 1/1/25.

Minnesota: $9.86 per hour for large employers (annual gross revenue of $500,000 or more); $8.04 per hour for small employers (annual gross revenue of less than $500,000). Local laws may require different minimum wage rates.

Missouri: $8.60 per hour. Increasing to: $9.45 1/1/20; $10.30 1/1/21; $11.15 1/1/22; $12.00 1/1/23.

Montana: $8.50 per hour.

New Jersey: $8.85 per hour.

Ohio: $8.55 per hour (gross receipts of $314,000 or more); $7.25 per hour (gross receipts less than $314,000).

Rhode Island: $10.50 per hour.

South Dakota: $9.10 per hour.

Vermont: $10.78 per hour.

Washington: $12.00 per hour. Increasing to: $13.50 1/1/20. Local laws may require different minimum wage rates.

State Minimum Wage Changes Effective July 1, 2019

D.C.: $14.00 per hour on 7/1/19. Increasing to: $15.00 7/1/20.

Oregon: $12.50 Portland metro area; $11.25 urban counties; $11.00 rural counties on 7/1/19. The Portland metro area will increase to $13.25 7/1/20; $14.00 7/1/21; $14.75 7/1/22. The urban counties will increase to $12.00 7/1/20; $12.75 7/1/21; $13.50 7/1/22. The rural counties will increase to $11.50 7/1/20; $12.00 7/1/21; $12.50 7/1/22.

State Minimum Wage Changes Effective October 1, 2019

Delaware: $9.25 per hour on 10/1/19. Increasing to: $9.75 10/1/20, $10.25 10/1/21.

Minimum Wage Basics

The federal FLSA requires that a minimum wage be paid for all hours an employee is “suffered or permitted” to work for the employer (29 U.S.C. §203(g)) and that an overtime wage be paid for all hours “worked” over 40 in a week. The FLSA does not specifically define “hours worked” or place a limit on the number of hours an employee may work; it requires only that overtime be paid for any hours worked over 40.

Determining exactly what constitutes hours worked is essential in determining an employee’s compensation and compliance with both minimum wage and overtime requirements of the act.

Hours worked includes time during which an employee is “necessarily required to be on the employer’s premises, on duty or at a prescribed work place” (29 C.F.R. §785.7). This broad definition of hours worked may require that an employee be compensated for time the employer does not otherwise consider working time, such as travel time, waiting time and certain meal, rest and sleep periods, and time the employee is required to spend in training, at seminars, or in meetings.

The courts and the U.S. Department of Labor, however, have developed a de minimis rule, whereby employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours, if, as a practical administrative matter, such time cannot be precisely recorded.

If employees are checking e-mails for 2 or 3 minutes, employers will likely not have to pay for this time. But if employees are spending 10 to 15 minutes after work hours, employers will have to pay employees for this work time. Also, the FLSA explicitly permits the rounding of an employee’s start and stop times.

Hours worked for purposes of the FLSA does not include time spent on call, time spent waiting to work, or time when an employee is required to carry a pager or cell phone, provided the employee is otherwise free to effectively use the time for his or her own personal purposes. The FLSA does not obligate employers to pay employees for holidays, vacation, or sick days.

The rules are strict, but the penalties are stricter. Paying employees properly now will help you to avoid expensive fines, claims, and lawsuits down the line.

Article courtesy of www.blm.com

Employee Classification

Classifying Your Employees

Federal and State laws generally do not define the terms of full-time, part-time or temporary employees.  This leaves the employer with the flexibility to categorize their employees. Most often, these classifications are based on the number of hours worked and the duties performed.  Typically the classification determines eligibility for benefits.

Basis for Classification

Employees usually fall into three major categories:

·         Full-time

·         Part-time

·         Temporary

You may want to use the eligibility requirements under your insurance benefit plans (many health care plans exclude part-time employees who work less than a specific number of hours per week)

However, the definition chosen will not affect the employee’s eligibility for legally mandated benefits, such as worker’ compensation, unemployment compensation, unpaid family and medical leave and military leave.

Also note that the Fair Labor Standards Act (FLSA) further classifies employees as eligible or ineligible for overtime pay and refers to them as being either exempt or non-exempt from the Act’s provisions.

Full-time Employees

A full-time employee is generally defined as one who works a normal workweek for an indefinite period of time.  Since the FSLA sets 40 hours as the maximum number of hours worked before employers must pay overtime to non-exempt employees, you may use that number as their normal work week.  (You can also use 37 ½ hours or even 35 hours, depending on business hours and meal schedules.) Full-time employment could also be defined according to part-time employment hours.  For example, if part-time employment is defined as 30 hours a week, then someone who works more than 30 hours per week could be classified as full-time.

Part-time Employees

Part-time employees work fewer hours than the normal full-time schedule, but are employed on an ongoing basis and typically receive some benefits.  Part-time employment may mean irregular hours or workdays.  A common definition or part-time employment is an employee who works less than 30 hours per week.

Employers may choose to provide their part-time employees with a pro-rata share of benefits such as sick leave, vacation and other paid absences based on the number of hours worked.

Temporary Employees

Temporary employees may work full or part-time hours.  What makes the employee status “temporary” is that the worker is hired for a particular project or for a finite period of time.  Because of the short-term nature of employment, temporary employees generally do not receive any benefits other than those required by law.

Some practices use temporary workers as a way to screen potential full-time candidates.  Because some temporary employees may have an increased expectation of advancing to regular employment and eligibility for benefits, employers should make it clear that temporary workers are being hired for a limited period of time and are not eligible for benefits.

Employers should explain the temporary nature of the job in a letter or other written document stating an approximate limit for the period that a worker is expected to be employed and give the option for the employer to extend as needed.

In addition, employers should monitor the status of temporary employees so that if a limited duration of their employees change, the employee can be reclassified and correctly offered benefits they may entitled to.  Failure to do so may conclude with a misunderstanding and potential legal claims.

Religious Discrimination Case Against UPS

New Ruling Shines Spotlight on Religious Discrimination

In July, the U.S. Equal Opportunity Commission sued the world’s largest package delivery service, United Parcel Services, claiming that UPS failed to hire, promote and accommodate Muslims, Rastafarians and Christians whose religions dictate grooming practices that UPS found objectionable. The lawsuit claims that UPS prohibits male employees who are supervisors or who have dealings with customers from wearing beards or growing their hair below collar length.

One example in the lawsuit is that of a Muslim applying for a driver’s helper position in New York who wears a beard as part of his religious beliefs. He was told to shave if he wanted the position and that “God would understand.” Another example in the lawsuit is that of a Rastafarian load supervisor in Fort Lauderdale who does not cut his hair as part of his religious beliefs and who was told “we don’t want any employees looking like women on management teams.”

The lawsuit against UPS comes on the heels of the U.S. Supreme Court ruling against retailer Abercrombie & Fitch on another religious discrimination claim. There, the company refused to hire a then 17-year-old woman in Oklahoma for a position at a store because she wore a “hijab,” or head scarf. The retailer claimed that the scarf, and all other head coverings, did not conform to the company’s dress code.

Both of these suits claim that the actions of the employers violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based upon (among other things) religion. As the Supreme Court stated in its Abercrombie decision, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Further, under Title VII, unless it would pose an undue hardship on the employer, an employer must make reasonable accommodations to its employees and cannot refuse to hire or promote an applicant/employee if the need for a religious accommodation is a motivating factor. “Undue hardship” on an employer is defined as an action that imposes “more than a minimal burden” on the business. Examples include causing a lack of necessary staffing, jeopardizing security, or costing the employer more than a minimal amount. What is considered “minimal” by an employer and the EEOC can vary significantly.

These cases make clear that religious discrimination is an area of strong interest (and enforcement attention) of the EEOC. It underscores the need for policies and practices that every employer should follow:

● Employers should ensure that managers know the EEOC guidelines, as well as the company’s policies, by providing periodic training to all managers. These trainings should especially cover policies relating to scheduling, dress codes and grooming standards – three of the most common areas of company policies that can run afoul of certain religious practices.

● There should be strict guidance provided to hiring managers prohibiting any jokes or sarcasm directed at any religious belief. These statements, even if made in a non-serious fashion, have no place in the workplace and often form objective proof of and the basis for claims.

● Hiring managers should be aware that an applicant is not required to make a specific request for a religious accommodation, nor may an employer make an adverse hiring, promotion or termination decision based upon “actual knowledge, suspicion or merely a hunch” that an applicant will request an accommodation.

● Policies should require that all managers inform their HR department if an existing or prospective employee requests an accommodation or if they believe such a request will be made.

● Hiring managers should not ask employees or applicants directly if they are groomed or wearing attire for religious reasons. This type of inquiry can lead to a discussion that may trigger a later religious discrimination claim.

● Employers should carefully consider all options available to them before denying an accommodation request, especially on the basis of undue hardship to the company.

Religious discrimination cases, even those resolved prior to any formal lawsuit, are costly and distracting for a business. Implementing an HR training program that reaches all levels of an organization is a wise investment in preventing discrimination of all types in the workplace.

(EBN website)

Workplace Bullying

Watch Out for Workplace Bullying

Workplace bullies have always been on the scene. But they’re now being recognized as productivity killers and potential legal threats to employers.

Some researchers claim one in every three employees will experience bullying at work. And the experts say bullying costs businesses more than $200 billion a year due to decreased productivity, increased absenteeism and high turnover.

A partial rundown of the corrosive effects of workplace bullying:

●        reduced productivity, efficiency and profitability

●        higher absenteeism, sick time and employee turnover

●        decreased morale and loyalty

●        increased costs due to recruitment and retraining

●        increased workers’ comp claims

●        indirect costs though time spent dealing with bullying situations

●        negative effects on the company’s image

●        potential fines for not abiding by occupational health and safety laws

●        legal costs from employees who bring lawsuits, and

●        potential increases to insurance and workers’ comp premiums.

Bullying isn’t automatically illegal. However, behaviors commonly associated with bullying often overlap with other behaviors that are illegal, such as harassment or bias.

Anton Hout, founder of OvercomeBullying.org, identifies these eight bully types:

1.      The Screaming Mimi. This is the most easily recognizable type of workplace bully. Screaming Mimis are loud and obnoxious, and their abusive behavior is meant to berate and humiliate people. They thrive on the notion that others fear them.

2.      The Two-Headed Snake. To a co-worker’s face, this employee acts like a trusted friend or colleague. However, when the co-worker is out of earshot, this person will destroy his colleague’s reputation, stab him in the back and even take credit for his work.

3.      The Constant Critic. This bully’s goal is to dismantle other people’s confidence through constant and often unwarranted criticism. A critic will look for any possible flaw in someone’s work and labors tirelessly to kill that person’s credibility. Impeccable work? No problem: This type of bully isn’t above falsifying documents or creating evidence to make others look bad.

4.      The Gatekeeper. Every office has at least one employee who enjoys wielding his or her power over others, regardless of whether that power is real or perceived. Gatekeepers deny people the tools they need, whether it’s resources, time or information, to do their jobs efficiently.

5.      The Attention Seeker. This type of bully wants to be the center of the action at all times. They’ll try to get on their superior’s good side through consistent flattery and even come on as kind and helpful to their peers, especially the newer employees. However, if co-workers don’t provide the right amount of attention, these bullies can quickly turn on them. Attention seekers are often overly dramatic and relate everything to something that’s going wrong in their own lives to garner sympathy and control. These bullies also have a tendency to coax personal info out of new employees only to use it against them later.

6.      The Wannabe. This is an employee who sees himself or herself as absolutely indispensable and expects recognition for everything. But Wannabes aren’t usually very good at their jobs. To compensate, these bullies spend a majority of their time watching more competent workers and looking for areas of skilled workers’ performance to complain about. Wannabes will demand that everything is done their way, even when there are better ways of doing things. Because they’re automatically opposed to others’ ideas, they’ll do everything in their power to prevent changes to their work processes.

7.      The Guru. Generally, there’s nothing wrong with this bully’s work performance. In fact, it’s not unusual for a Guru to be considered an expert in his or her own niche area. What these bullies offer in technical skill, however, they severely lack in emotional maturity. Gurus see themselves as being superior to their co-workers. As a result, they don’t consider how their actions will affect others, aren’t able to fathom the possibility that they can be wrong and don’t accept responsibility for their own actions. In addition, because these bullies feel as though they’re “above it all,” they don’t always feel compelled to follow the same rules as everybody else.

8.      The Sociopath. Intelligent, well-spoken, charming and charismatic, sociopaths are the most destructive bullies of all. Reason: They have absolutely no empathy for others, yet they are experts at manipulating the emotions of others in order to get what they want. These bullies often rise to positions of power within the company, which makes them extremely dangerous. Sociopaths tend to surround themselves with a circle of lackeys who are willing to do their dirty work in exchange for moving up the ranks with them.

The best defense a company can have against workplace bullying is a clearly worded policy that prohibits any type of bullying behavior.

Here are some components every good anti-bullying policy should include:

●        a clear definition of what is considered bullying – along with a list of some of the actual behaviors that meet the definition

●        an outline of how employees can report bullying, including guidance on what to do when the bully is the manager

●        a detailed explanation of the complaint and investigation process that will take place

●        a “no retaliation” clause to help employees feel safe about reporting problem behavior, and

●        a list of consequences of violating the anti-bullying rules.

(HRMorning website)

Employee Handbook Guidelines

Guidelines for Employee Handbooks

An employee handbook is essential for the well-being of every organization. It communicates the employer’s mission, vision and culture, as well as information on rules, policies and benefits. It also contains information on state and federal employment laws.

When well-constructed, employee handbooks help employers build trusting relationships with workers, avoid conflicts and ensure fair treatment in the workplace. When poorly written, they can create a nightmare of situations for HR, ranging from hostile work environments to lawsuits.

According to Allan H. Weitzman, head of the Labor and Employment Law Department of Proskauer Rose LLP, when it comes to employee handbooks, “every word counts.” He says there are seven principles every HR professional should follow when creating one:

1.      Make sure your handbook is NOT an employment contract.

2.      Plainly state employer rules, regulations and procedures.

3.      Describe your policies designed to assist employees.

4.      Communicate your commitment to equal opportunity.

5.      Set guidelines for the termination of employment.

6.      Develop cutting-edge policies.

7.      Incorporate state and local legal requirements into your handbook.

It is imperative that employers update their handbooks on a regular basis to ensure compliance with all state and federal employment laws and with changes to their own policies and procedures. When faced with lawsuits by employees, these check-ups could make or break an employer’s case in court.

Magnets for HR Lawsuits - Inconsistency & Retaliation

HR Inconsistency and Retaliation—Lawsuit Magnets

Follow Disciplinary Procedures

If you conduct an investigation and you find that an employee has violated the law or your employment policies, you need to follow your general disciplinary policies and procedures in meting out punishment.

Your disciplinary systems should:

• Ensure that the appropriate discipline is applied (the punishment fits the crime).
• Ensure that discipline is consistent for all employees.
• Give employees fair warning that they have violated company policies.
• Give employees a chance to improve.
• Create a paper trail of evidence to show what the employee did and how you responded.

Make sure you follow your discipline system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.

Watch Out for Retaliation

Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the Family and Medical Leave Act, the Fair Labor Standards Act, and many others.

In general, retaliation is any adverse action that’s taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. In the context of firing, the most common type of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.

Double Check

Before making a final decision to fire someone, it’s helpful to step away for a moment to take a look at the big picture. Ask yourself if there’s any chance that you’re firing the employee for some reason other than the one you claim. Is the employee being treated differently from other employees with similar performance or misconduct deficits? If so, why? Is there anyone in the company who will be glad to see the employee go? If so, why? If the underlying reason for their feelings is discrimination or retaliation and they had any influence in the firing decision, you could be in big trouble.

What if you make the wrong decision? A growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he’s guilty but whether you reasonably believed he was guilty. As long as your investigation was fair and your conclusion reasonable, you’ll be protected from liability even if you were wrong.

Document Everything

No matter how diligently you follow your disciplinary procedures, no matter how honest and fair your evaluations, it won’t mean much in court without clear documentation to support your decision.

Background Check Best Practices

Best Practices for Background Checks                                         

When you are hiring employees, background checks can help make sure you have the right people, and having the right people can impact your organization’s success and the safety of your communities. Ultimately, background checks help you screen out dangerous individuals, and assist you in retaining the best possible candidates.

Conducting background checks for employment purposes is an extremely important tool for many employers. The following are some best practices:

●        Review Job Descriptions

Employers should review the requirements of each position and determine whether a background check is necessary for that position. Employers should also review and consider narrowing the positions for which they are running credit reports and make sure that the information requested from each candidate is relevant to the specific position for which the candidate applies.

●        Review Policies And Procedures

Employers should review their background screening policies and procedures and develop processes to ensure that all the necessary notice and disclosures are being provided to candidates in compliance with Title VII and the Fair Credit Reporting Act (FCRA).

●        Comply With The EEOC Guidance

Employers should also remember the EEOC guidance and when they are reviewing a candidate’s criminal history information, also consider:

·         The nature and gravity of the offense;

·         The time that has passed since the conviction and/or completion of the sentence;

·         The nature of the job held or sought; and

·         Apply the EEOC’s individualized assessment factors.

●        Consider The Timing of Background Checks

Employers should determine when to inquire about an individual’s criminal history and when to conduct a background check (i.e., after making conditional offers of employment, or after an interview).

Even then, employers should not automatically rescind an offer if they find something concerning in the background check, but should consider asking that person about the negative information. There may be a legitimate explanation, such as identity theft, for the negative information. There could also be an error on the report.

●        Disclosure Statements And Authorizations

Employers should also carefully review their disclosure and authorization forms for compliance on a regular basis. They should consider eliminating any extraneous information from the disclosure form, including a release of liability from the candidate, and consider separating the disclosure form from the authorization form.

●        Comply With Pre-Adverse And Adverse Action Notice Requirements

Employers must also review their procedures for ensuring that pre-adverse action and post-adverse action notices are provided in accordance with the FCRA. The key is that employers must also make sure that they always provide candidates with a copy of their consumer report and give them a reasonable opportunity to dispute the accuracy of the report, before the adverse action is taken.

●        Comply With State Requirements

Employers should be aware of the laws in the states in which they operate. This includes state laws requiring “job relatedness” for criminal and credit background checks, ban-the-box laws, and laws concerning the timing of background checks, and laws concerning state and local-specific notices/disclosures to be provided to candidates.

                                               

(HireRight website)

New OT Regulations Proposed by The Department of Labor

DOL Proposes New Overtime Regulations

The Department of Labor (DOL) announced June 30, 2015, a highly anticipated proposed rule under the Fair Labor Standards Act (FLSA) that would extend overtime protections to nearly 5 million white-collar workers.

Workers who earn as much as $970 a week—$50,440 a year—would have to be paid overtime even if they’re classified as a manager or professional, according to the announcement.

Under current regulations, the salary threshold remains at $23,660 ($455 per week), which is below the poverty threshold for a family of four, and only 8 percent of full-time salaried workers fall below it, according to a fact sheet issued by the Obama administration.

Here are some highlights from the DOL’s proposed changes:

●        Significant Impact.

Employees and employers across every industry and sector will be impacted. Most employers covered by the FLSA will need to analyze employee classifications and make other changes, by a likely 2016 effective date that will be established in the final rule. According to DOL, 11 million employees will be impacted.

●        Salary Level Will Increase.

To be exempt currently, workers must make more than $455/week ($23,660 annually). The proposed rule sets the standard salary level at the 40th percentile of weekly earnings for full-time salaried workers, which for 2013 was $921 per week, or $47,892 annually. If the 40th percentile approach is adopted, the 2016 level is projected to be $970 a week, or $50,440 annually. This will impact all sectors, but it may disproportionately affect the non-profit and service sector industries as well as certain geographic areas of the country.

●        Changes to Highly Compensated Employees (HCEs).

The department is proposing to set the HCE annual compensation level equal to the 90th percentile of earnings for full-time salaried workers ($122,148 annually), or based on changes in inflation. Currently, in order to fall under this exemption an employee must earn at least $100,000.

●        For the First Time, DOL Proposes to Automatically Raise the Salary Level.

The Department is proposing to automatically update the salary level (including for highly compensated employees) on an annual basis, either based on percentiles of earnings for full-time salaried workers or based on changes in inflation.

●        Feedback Sought on Duties Test and Nondiscretionary Bonuses.

While no changes have been proposed yet, the regulation acknowledges challenges associated with the duties test and seeks additional examples regarding specific occupations. Similarly, the department wants to hear from employers about the possibility of including nondiscretionary bonuses to satisfy a portion of the standard salary requirement.

The Notice of Proposed Rulemaking (NPRM) was published on July 6, 2015 in the Federal Register.  Interested parties are invited to submit written comments on the proposed rule at www.regulations.gov on or before September 4, 2015. The DOL will review all comments, then draft a final rule and submit it for interagency review.  This process can take nine to twelve months.  Additional information concerning this NPRM can be found on the DOL website.

(DOL website, SHRM website)

Classification of Employees

Classifying Your Employees

Federal and State laws generally do not define the terms of full-time, part-time or temporary employees.  This leaves the employer with the flexibility to categorize their employees. Most often, these classifications are based on the number of hours worked and the duties performed.  Typically the classification determines eligibility for benefits.

Basis for Classification

Employees usually fall into three major categories:

·         Full-time

·         Part-time

·         Temporary

You may want to use the eligibility requirements under your insurance benefit plans (many health care plans exclude part-time employees who work less than a specific number of hours per week)

However, the definition chosen will not affect the employee’s eligibility for legally mandated benefits, such as worker’ compensation, unemployment compensation, unpaid family and medical leave and military leave.

Also note that the Fair Labor Standards Act (FLSA) further classifies employees as eligible or ineligible for overtime pay and refers to them as being either exempt or non-exempt from the Act’s provisions.

Full-time Employees

A full-time employee is generally defined as one who works a normal workweek for an indefinite period of time.  Since the FSLA sets 40 hours as the maximum number of hours worked before employers must pay overtime to non-exempt employees, you may use that number as their normal work week.  (You can also use 37 ½ hours or even 35 hours, depending on business hours and meal schedules.) Full-time employment could also be defined according to part-time employment hours.  For example, if part-time employment is defined as 30 hours a week, then someone who works more than 30 hours per week could be classified as full-time.

Part-time Employees

Part-time employees work fewer hours than the normal full-time schedule, but are employed on an ongoing basis and typically receive some benefits.  Part-time employment may mean irregular hours or workdays.  A common definition or part-time employment is an employee who works less than 30 hours per week.

Employers may choose to provide their part-time employees with a pro-rata share of benefits such as sick leave, vacation and other paid absences based on the number of hours worked.

Temporary Employees

Temporary employees may work full or part-time hours.  What makes the employee status “temporary” is that the worker is hired for a particular project or for a finite period of time.  Because of the short-term nature of employment, temporary employees generally do not receive any benefits other than those required by law.

Some practices use temporary workers as a way to screen potential full-time candidates.  Because some temporary employees may have an increased expectation of advancing to regular employment and eligibility for benefits, employers should make it clear that temporary workers are being hired for a limited period of time and are not eligible for benefits.

Employers should explain the temporary nature of the job in a letter or other written document stating an approximate limit for the period that a worker is expected to be employed and give the option for the employer to extend as needed.

In addition, employers should monitor the status of temporary employees so that if a limited duration of their employees change, the employee can be reclassified and correctly offered benefits they may entitled to.  Failure to do so may conclude with a misunderstanding and potential legal claims.

8 Common Supervisor Mistakes

Eight Common Supervisor Mistakes

Sometimes it seems as though there are a thousand ways supervisors and managers, although well-intentioned, can make misjudgments and end up with employee lawsuits. Here are 8 major, but common, errors to discuss while training your managers and supervisors.

1. Making unlawful pre-employment inquiries

Inappropriate questions during interviews and other pre-employment contacts are a primary source for claims of discrimination. The courts generally assume that if you asked a question, you intended to use the answer as a factor in your hiring decision. Therefore, any questions about or references to protected categories like sex, age, race, national origin, or religion, can later be used against you in court in a discrimination claim.

To the extent possible, standardize the application and interview process. Ask all applicants fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the job.

2. Delivering “dishonest” evaluations

Many managers and supervisors avoid the discomfort of delivering a review that indicates poor performance and instead cop out with a “satisfactory” rating. As a result, many legitimate actions taken against an employee based on poor performance can be questioned because the performance reviews are positive. So it’s important to be honest with performance evaluations. That’s easier when there are clear standards; if they are not met, just say so.

3. Too vague in discipline and performance write-ups

Similarly, and again to avoid unpleasantness, managers and supervisors will often write something on performance evaluations like “needs improvement.” That’s too vague. Does that mean the employee does a great job, but there’s always room for a little improvement, or does that mean that the employee is terrible? Or how about “talked to Sally about her performance and behavior.” And then we’ve got judgment words like “lazy.” Again, too vague. Offer documentation and documented examples of behavior.

4. Making rash disciplinary decisions

Maybe you will ultimately determine that firing is the appropriate thing to do, but getting angry and making an impulsive decision isn’t the way to do it. First of all, an angry tirade, especially if in public, gets those “I’m going to sue” juices flowing. Second, you should never fire without carefully reviewing the circumstances with HR.

5. Making uninformed responses to medical leave requests

Few supervisory situations are as frustrating and challenging as dealing with employee requests for medical leave, particularly since it may involve FMLA, ADA, and/or workers’ compensation. It’s never convenient, but managers and supervisors have to curtail any frustration and respond professionally. The basic rule for managers and supervisors should be to contact HR when employees are going to take leave that might involve any those three reasons.

6. Not knowing and not enforcing policies

Supervisors and managers are the front line for interpreting and enforcing the company’s policies. But if they don’t know the policies and their associated responsibilities, they’ll be begging for lawsuits. For example, imagine a supervisor telling an employee that he or she does not have time to listen to a claim of unwelcome harassment, or safety issues, or potential NLRB violations.

Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees. Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace.

7. Letting problems fester

With bad behavior, it’s always tempting to ignore the problem in hopes that the behavior will improve on its own. But you know that’s not going to happen. And, unfortunately, as time goes by, you appear to be condoning the behavior. “You’ve known he was doing this for six months, and you did nothing, and now suddenly it’s a firing offense?

8. Making “Side Agreements”

Managers under stress may be tempted to make “side agreements,” that is agreements that either go against policy or are promises that likely won’t be kept. Sometimes, these agreements are directly contrary to law and policy; for example, employees can’t waive their right to overtime or pay for hours worked—even if they agree, even if they are eager to do a little work on the side. And three problems arise:

·         It’s illegal behavior and there will be subsequent lawsuits.

·         Employees will be left feeling that agreements haven’t been honored.

·         There’s unequal treatment, so others who didn’t get the special treatment or privilege may sue.

(BLR website)

Using Reference Checks Effectively

5 Tips for Effective Reference Checks

There are many reasons why you should check the references of prospective employees. Often, applicants’ resumes and application forms are incomplete or even contain misrepresentations that could lead to a bad hiring decision. So, if you check references, you can help eliminate undesirable applicants, identify the best candidate, reduce turnover and training costs, and even prevent liability for negligent hiring.

At a minimum, carefully conducted reference checks can help ensure that your hiring decisions are more informed. Generally, reference checks should be made before the offer of employment is extended so that you have as much information about a candidate as possible. However, it may be difficult to get a reference-giver to provide helpful information because of their fears of defamation claims and restrictive corporate policies allowing only the release of a former employee’s name, rank, and serial number.  The following five strategies can help your organization conduct effective reference checks:

1. Insist that every applicant sign a release.

Never check references before obtaining the candidate’s written permission to do so. Consent is a strong defense to defamation and other tort (wrongful act) claims an applicant may bring, and it also generally is required under the Fair Credit Reporting Act before an employer can use a third party to conduct checks. To protect further against applicant lawsuits, the consent form also should include language that releases the organization and its agents, as well as former employers and reference givers, from any legal liability that may result from the checks.

2. Get job-related information from applicants.

Before conducting reference checks, request that applicants provide background documentation such as old pay stubs, business cards, job descriptions, and performance appraisals. These items can be used to verify information provided in resumes, application forms, and interviews and can help identify specific issues to follow up on in reference inquiries.

3. Minimize reference resistance.

Expect reference sources to be guarded, or even defensive, since so many organizations try to limit potential legal exposure by releasing only the “name, rank and serial number” of former employees. To facilitate the process, fax or mail the signed consent and release to the reference giver. When calling references, the interviewer can help break the ice by briefly sharing information about himself, the organization, and the job the candidate has applied for. Some employers even ask an applicant to contact referrers first to help ensure that they can actually get through to them.

4. Keep questions pertinent.

To obtain relevant and consistent information on applicants, develop a reference check form with a list of standard questions and require its use for all checks. At a minimum, the form should cover the basics including dates of employment, positions held, and pay rates. In addition, it should contain open-ended questions about skills, qualifications, strengths, weaknesses, work habits, and suitability for the position. The form also should include specific questions about performance issues and disciplinary actions, eligibility for rehire, and reasons for leaving.

5. Document responses, even if limited.

Keep an accurate written record of all your reference discussions to support your hiring decisions and to help protect against negligent hiring, defamation, and other legal claims. And, if the reference giver refuses to provide any information, document the request and the lack of cooperation.

Of course, reference checks are just one of many tools that you need to make a good hiring decision. You also should verify other information on a candidate’s resume or application (such as educational history pertinent to the job) and consider performing additional background checks (such as criminal, credit, and driving checks) if the nature of the job warrants these checks. In addition, you may want to conduct skills testing to further evaluate a candidate’s abilities. All of these steps will help you make more effective hiring decisions.