Category Archives: Employer Policies

DOL Answers More Questions About Paid Sick Leave and Expanded Family and Medical Leave Under the FFCRA

On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued yet another series of questions and answers to provide additional guidance regarding the protections and relief offered by the new Families First Coronavirus Response Act (FFCRA). The DOL also reorganized its FFCRA questions page by categories (definitions, eligibility, coverage, application, and enforcement), in addition to its questions and answers by number.

As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the Family and Medical Leave Act of 1993 (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. The FFCRA became effective April 1, 2020, and will expire at the end of the year. It is enforced by the WHD. Continue reading

The Notice Required by the Families First Coronavirus Response Act is Now Available for Download

This afternoon the U.S. Department of Labor’s Wage and Hour Division made the Notice that employers covered under the Families First Coronavirus Response Act (“FFCRA”) are required to post available on its website. There is a special notice for federal employees.

In addition, clarification was provided on how to post notices if employees are working remotely, whether posting in other languages is required, and where to check for revisions to the notice. The following questions and answers address these and other questions that may arise regarding the posting requirement in the FFCRA.

1. Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice?
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

2. Do I have to post this notice in other languages that my employees speak? Where can I get the notice in other languages?
You are not required to post this notice in multiple languages, but the Department of Labor (Department) is working to translate it into other languages.

3. Do I have to share this notice with recently laid-off individuals?
No, the FFCRA requirements explained on this notice apply only to current employees.

4. Do I have to share this notice with new job applicants?
No, the FFRCA requirements apply only to current employees. Employers are under no obligation to provide the notice of those requirements to prospective employees.

5. Do I have to give notice of the FFCRA requirements to new hires?
Yes, if you hire a job applicant, you must convey this notice to them, either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

6. If my state provides greater protections than the FFCRA, do I still have to post this notice?
Yes, all covered employers must post this notice regardless of whether their state requires greater protections. The employer must comply with both federal and state law.

7. I am a small business owner. Do I have to post this notice?
Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice.

8. How do I know if I have the most up-to-date notice? Will there be updates to this notice in the future?
The most recent version of this notice was issued on March 25, 2020. Check the Wage and Hour Division’s website or sign up for Key News Alerts to ensure that you remain current with all notice requirements.

9. Our employees must report to our main office headquarters each morning and then go off to work at our different worksite locations. Do we have to post this notice at all of our different worksite locations?
The notice needs to be displayed in a conspicuous place where employees can see it. If they are able to see it at the main office, it is not necessary to display the notice at your different worksite locations.

10. I am running out of wall space. Can I put the required notices in a binder that I put on the wall?
No, you cannot put federal notices in a binder. Generally, employers must display federal notices in a conspicuous place where they are easily visible to all employees—the intended audience.

11. We have break rooms on each floor in our building. Do I have to post notices in each break room on each floor or can I just post them in the lunchroom?
If all of your employees regularly visit the lunchroom, then you can post all required notices there. If not, then you can post the notices in the break rooms on each floor or in another location where they can easily be seen by employees on each floor.

We are available to assist employers and answer questions related to the FFCRA and other pandemic-related concerns.

Jennifer Fowler-Hermes
Jfowler-hermes@williamsparker.com
(941) 552-2558

Employees’ Healthcare Coverage and Unpaid Leave, Layoff, or Furlough

At Williams Parker we continue to work to provide businesses with the information they need to make difficult decisions in this uncertain time. We have received many questions regarding how business decisions related to COVID-19 may impact employees’ healthcare benefits. As part of our extended team through Ally Law, our international alliance of law firms, we are able to partner with specialists in a wide-range of legal areas for the benefit of our clients. This advisory provides important information regarding COVID-19 and healthcare benefits from Varnum, which is our Ally law firm in Michigan.

For more information about Ally Law, visit williamsparker.com/global-services.

 

Coronavirus and the Workplace

wash hands

With fears of COVID-19 or Coronavirus Disease mounting, businesses and employers should not only understand how the disease could affect their workplaces, but also take steps to minimize any possible impact.  To assist with this objective, the United States Centers for Disease Control and Prevention (CDC) issued an Interim Guidance for businesses and employers in non-healthcare settings. Other guidance directed at specific industries, such as healthcare, airlines, and ship industry have also been issued.

Below are several strategies that employers can implement now:

  • Actively encourage sick employees to stay home, especially those with symptoms of acute respiratory illness, until free of fever (100.4˚F or greater) and any other symptoms for at least 24 hours without using fever-reducing or other symptom-altering medicines.
  • Do not require a healthcare provider’s note to validate the illness as medical facilities may be extremely busy and unable to provide documentation timely.
  • Anticipate employees may need to stay home to care for sick family members.
  • Send home sick employees upon arrival or when symptoms appear.
  • Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees.
  • Provide tissues, alcohol-based hand sanitizer, and soap and water.
  • Perform routine environmental cleaning, including frequently touched surfaces, like workstations, desks, countertops, doorknobs, keyboards, remote controls, and telephones.
  • Advise employees before traveling to check CDC’s Traveler’s Health Notices.
  • Adopt additional measures to respond to employees or their family members who have COVID-19:
    • Notify employee’s supervisor.
    • Inform fellow employees of their possible exposure.
    • Refer ill and exposed employees to a CDC guidance for how to conduct a risk assessment.
    • Maintain sick employees’ confidentiality as required by Americans with Disabilities Act.
  • Design infectious disease outbreak response plan.
  • Prevent discrimination in the workplace—do not make determinations of risk based on race or national origin.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

Planning for Hurricane Season: Employee Pay During and After a Storm

With the onset of the 2019 hurricane season and the effects of Hurricanes Michael and Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Healthcare employers also have ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s article, “Senior Living Providers: Are You Ready for Andrea, Barry, and Chantal?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same! (Part II)

As we mentioned in Part I of this post, this year the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and other strategies to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA).

How do employers know if Homeland Security Investigations (HSI) has initiated an audit or administrative inspection of their businesses? The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer compelling production of Forms I-9 and frequently other supporting documentation such as payroll reports, a list of current employees, articles of incorporation, and business licenses. Employers have at least three business days to produce the Forms I-9, after which HSI will conduct an inspection for compliance following ICE’s inspection process, give the employer 10 days to correct technical or procedural violations, and assess applicable fines and penalties.

Form I-9 best practice tips for employers include:

  • Establish a uniform written Form I-9 compliance policy and train staff accordingly.
  • Avoid discrimination claims by educating staff on the appropriate way to verify documents and treat all job applicants the same regardless of their citizenship or immigration status or their national origin.
  • Put in place a “tickler” system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
  • Establish a best practice method for proper cataloging and retention of Forms I­-9—separate former and active employees’ Forms I-9.
  • Keep Forms I-9 organized and separate from general personnel files. Establish a consistent policy regarding obtaining and retaining copies of verified documents.
  • Purge old Forms I-9s that are past the retention period on an annual basis (three years from date of hire or one year after termination, whichever is longer).
  • Conduct routine formalized self-audits and document each internal audit, preferably with guidance from legal counsel.
  • Call legal counsel immediately if you are served with a Notice of Inspection as the time to respond is short and it is critical to submit well-organized documents only after receiving legal advice.
  • Do not consent to an immediate inspection if agents arrive without warning – employers have three days to submit documents.
  • Only submit what is requested – nothing extra.
  • Do not let agents take original records without retaining copies.
  • Do not allow agents to talk with any employees or company officers before contacting legal counsel.
  • If the U.S. Department of Labor (DOL) agents arrive for an inspection of Forms I-9 without notice, decline the inspection. They will notify ICE.  (Note – if DOL agents seek to inspect wage and hour or FMLA records, decline the inspection and contact your legal counsel to schedule it at a convenient time.)
  • If U.S. Department of Justice Immigrant and Employee Rights Section (IER) agents arrive for an inspection of Forms I-9 without notice or deliver notice of intent to conduct a worksite enforcement audit, call legal counsel immediately to help coordinate a response. See also IER’s Employer Best Practices During Worksite Enforcement Audits.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same!

In 2019, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and civil fines to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA), along with criminal prosecution of employers who knowingly violate IRCA.

Last year ICE I-9 audits increased by 340 percent, resulting in 779 criminal arrests of employers; 1,525 administrative arrests of unauthorized employees; and more than $10.2 million in judicial fines, forfeitures, and restitutions. While most employers do not intentionally falsify Forms I-9 or knowingly accept fraudulent documents from employees, employers’ honest mistakes related to Forms I­9 can be costly. Civil fines, per form with one or more mistakes, range from $216 to $2,156. Thus, the same mistake made on each form could increase the fine exponentially. Moreover, do not forget that the U.S. Department of Justice Immigrant and Employee Rights Section (IER) also conducts Form I-9 audits to ensure that businesses are not engaging in citizenship discrimination.

Employers should protect their businesses by ensuring Form I-9 compliance programs are in place, up-to-date, and followed. For instance, employers should confirm they are using the current form, which has an August 31, 2019 expiration date, and properly following the instructions. Take care to avoid common Form I-9 mistakes, such as an employee’s failure to sign or date the form or the employer’s failure to complete Section 2 by the third business day after the date the employee begins employment. For guidance from ICE regarding Form I-9, visit “I-9 Central” or review ICE’s list of Common Mistakes and How to Avoid Them.

Also, employers should conduct routine Form I-9 internal audits and properly remedy identified errors in order to be legally compliant and to help avoid liability should ICE or IER select your company for an inspection. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

In the next couple of weeks, part II of this post will address the ICE inspection process.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

Business Resolutions: Ensuring Your Business Starts the New Year Off Right

When was the last time that your business had a wage audit to evaluate whether your employees are properly classified under the Fair Labor Standards Act, or had your employee handbook reviewed and revised to bring it up-to-date with the law and current company practices? If it has been a few years, then this may be the year that your business resolves to invest in a wage audit and/or handbook review.

Wage audits include an evaluation of your job positions, pay and overtime policies, as well as payroll records of each position within an organization or department. Sometimes, audits can also include interviews with employees to ascertain if there are any issues that management should be aware of. Audits can reveal if a business has any issues with, not only misclassification of employees as exempt when they should be non-exempt, but whether managers are following the organization’s policies regarding overtime. As a company grows and changes, often the duties of its employees also change. Sometimes these changes are significant enough that a change in classification is in order and a failure to adjust the classification could result in liability. Further, a wage audit can often help to determine if an organization’s accountant or payroll company is calculating overtime in accordance with the applicable regulations. Many a lawsuit are filed against employers who believe that since they have enlisted the assistance of a third party, employee overtime is being calculated appropriately. That is not always the case.

Employee handbooks should be reviewed every couple of years, not only to ensure that the handbook reflects the current state of the law, but also that it reflects the actual practices of a company. Businesses grow and change, and actual practices can start to diverge from what is reflected in the handbook. It is always better to have a handbook that provides policies and procedures that the company is currently using and enforcing. It is never recommended for a company to have policies that it does not follow.

This post is part of a series of business resolutions to consider for the new year. In case you missed them, our previous posts in the series discussed Florida minimum wage and employee performance management.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

What Are Your Company’s Business Resolutions for the New Year?

As 2019 approaches, many companies reflect on the year that has gone by, remembering both the triumphs and missteps. As this year comes to a close, many businesses will be making business resolutions for the new year. You may already have some goals set, but if you do not, this post will be the first in a series designed to provide insight into areas where companies may want to focus in the year ahead.

We will start this series off with our colleague John Hament’s recent article from our Requisite X publication, “Adapting to Change: Reinventing Employee Performance Management.” As explained in this article, for some employers there can be downsides to the traditional annual performance evaluation system. Recognizing these downsides, and ascertaining if a different approach is good for your organization, may be a worthwhile business resolution.

Stay tuned for more resolutions to consider in 2019.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The NLRB Continues to Retreat on Its Assault of Handbook Policies

In a recently released memo, the NLRB General Counsel confirmed the Board’s December 2017 signal of a shift in how the Board will scrutinize employer personnel policies. In December 2017, the NLRB changed course when it replaced the Lutheran Heritage standard, which had been aggressively used by the Board to invalidate personnel policies, with the Boeing standard (as discussed in our post from December 2017, “The NLRB’s Holiday Gift to Employers”). The Lutheran Heritage standard evaluated whether employees could “reasonably construe” a policy as barring them from exercising their rights under the NLRA. If the answer was “yes,” the policy was improper. The Lutheran Heritage standard was often applied in a manner that gave the appearance that the NLRB thought employees were lacking in intellect or common sense. Thus, the switch to the Boeing standard was generally celebrated by employers.

Even so, many employers felt that although the Boeing standard was a step in the right direction, it was somewhat complicated. In response to these criticisms, on June 6, 2018, NLRB General Counsel Peter Robb issued GC 18-04 “Guidance on Handbook Rules Post-Boeing.” This guidance provides examples of the policies (which he refers to as rules) that would fit into each of the three categories, and also makes it clear that the NLRB will no longer interpret ambiguities in rules against the drafter, “generalized promises should not be interpreted as banning all activity that could be considered included.”

The memo explains that the Boeing standard balances the personnel policy in question’s impact on NLRA-protected rights with the employer’s legitimate business justifications. The Boeing analysis uses three categories to determine the legality of rules:

Category 1: Rules that are Generally Lawful to Maintain

Category 2: Rules Warranting Individualized Scrutiny

Category 3: Rules that are Unlawful to Maintain

The memo goes on to state that Category 1 includes rules that may have been found unlawful under the Lutheran Heritage standard. It also explains that the types of rules in this category are generally lawful because the rules do not prohibit or interfere with the exercise of NLRA-protected rights or because there are business justifications associated with the rule. Rules in this category include:

(a) civility rules;

(b) no photography, no-recording rules;

(c) rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;

(d) disruptive behavior rules;

(e) rules protecting confidential, proprietary, and customer information or documents;

(f) rules against defamation or misrepresentation;

(g) rules against using employer logos or intellectual property;

(h) rules requiring authorization to speak for company; and

(i) rules banning disloyalty, nepotism, or self-enrichment.

The memo provides that charges alleging that rules in Category 1 are facially unlawful are to be dismissed, recognizing however, that special circumstances could render a normally lawful rule in Category 1 unlawful. Facially lawful rules cannot be used to prohibit protected activity or to discipline employees for engaging in protected activity.

Category 2 rules are to be evaluated on a case-by-case basis. Such rules are not facially lawful or unlawful. If rules in this category restrict NLRA-protected rights, then the question is whether the employer’s business interest in having the rule outweighs the restriction on NLRA-protected rights. Some “possible examples” of Category 2 rules are:

(a) broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;

(b) confidentiality rules that encompass employer business or employee information;

(c) rules regarding disparagement or criticism of the employer;

(d) rules regulating the use of the employer’s name;

(e) rules generally restricting speaking to the media or third parties;

(f) rules banning off-duty conduct that might harm the employer; and

(g) rules against making false or inaccurate statements.

Category 3 rules are unlawful to maintain because they prohibit or limit NLRA-protected conduct and the adverse impact on NLRA-protected rights outweigh any justifications for them. Category 3 rules include:

(a) confidentiality rules specifically regarding wages, benefits, or working conditions; and

(b) rules against joining outside organizations or voting on matters concerning.

In light of Boeing and GC18-04, employers should be more confident in their ability to maintain appropriate policies for their workplaces, including those that dictate professional behavior. The new approach is clearer and provides for a balancing of employer justifications with employee rights, resulting in common-sense personnel policies being upheld as lawful. Employers are now better positioned to defend attacks on their well drafted, common-sense personnel policies.

Summer associate Ryan Larson assisted in preparing this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558