Category Archives: Employer Policies

Planning for the Next Hurricane: Employee Pay During and After a Storm

With the onset of the 2018 hurricane season and the effects of Hurricane 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.

Heathcare employers also have new 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 recent article, “Senior Living Providers: Are you ready for the Beryl, Chris, and Derby?

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

A New W-4

The Tax Cuts and Jobs Act has several provisions that impact payroll, employment tax, and employee benefits. In accordance with these changes, the IRS released new withholding tables, as well as a new W-4. Although the IRS is not requiring employers have its entire workforce (hired before March 30, 2018) complete the new W-4, as of February 15, 2018, employers were required to begin withholding from employee wages based on new withholding tables.

At this time, employers should, at a minimum, have all new hires and any employee that has a change in their tax status (e.g., marriage), complete the new 2018 W-4. Further, if employers are not requiring all employees to complete new forms, employers should at least encourage their employees to review their withholdings, as the Act eliminated certain exemptions and allowances. As a result, some employees’ allowances may be overstated, resulting in under-withholding for the year. If employees want to submit a new W-4, they should be allowed.

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

The Form I-9 Changes Yet Again

The United States Citizenship and Immigration Services (USCIS) has issued yet another revision to the Form I-9, Employment Eligibility Verification. The previous version was imposed on employers less than a year ago (released November 14, 2016; effective date January 22, 2017), and now that employers are finally getting accustomed to the version released in November, they must quickly adapt to the even newer Form I-9, as its use is mandatory effective September 18, 2017.

The revised Form I-9, which you can download from USCIS is a modest update to the Form I-9 dated November 14, 2016. In the revised Form I-9 instructions, the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to reflect its new name, Immigrant and Employee Rights Section. Less notably, in the instructions, “the end of” has been removed from the phrase “the first day of employment.”

The List of acceptable documents has received some minor updates as well. The Consular Report of Birth Abroad (Form FS-240) has been added to list C and will now be selectable from the drop-down menus available in List C of Sections 2 and 3. It will also be available for selection for E-Verify users when creating a case for an employee who has presented this document for Form I-9. Additionally, the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C#2 in List C, and with the exception of the Social Security card, all List C documents have been renumbered.

USCIS has included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

This post was co-authored by Jennifer Fowler-Hermes and Ryan P. Portugal.

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

Ryan P. Portugal
rportugal@williamsparker.com
(941) 329-6626

Employers and Florida’s New Medical Marijuana Law

On June 23, 2017, Florida Governor Rick Scott signed into law a bill implementing the state’s medical marijuana constitutional amendment. You can view the full law here. The new law provides some clarity for employers. The statute provides, in relevant part:

This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

Although this law fails to specifically state that an employer is not required to provide any type of accommodation to employees relating to the use of medical marijuana, it does directly address several employment related questions that have made employers a little uneasy ever since voters made medical marijuana part of the Florida constitution in 2016.

Another Day, Another March: Did This One Impact Your Workforce?

Yesterday was International Workers’ Day and, around the world, there were marches planned to bring attention to both the accomplishments achieved through the efforts of workers and to the hardships experienced by workers (who are we kidding – these marches are mostly about the latter of these objectives). Although the marches were intended to focus generally on workers’ rights, not all of the scheduled marches were intended to bring attention to the same subset of workers. Some participants marched to support immigrant workers and others to support women workers. More than a few participants in the United States joined the march to protest the policies of the current Administration.

The level of any workforce’s participation in the march for International Workers’ Day directly determines the impact of the event on you as the employer. Clearly, if no one participates then you have no cause for concern, as no one is missing work, no one is violating work rules, and tasks are being completed. However, if your employees did participate, and did so without properly requesting time off, then you have to decide how to respond. If you did not catch either of my blog posts here and here regarding “A Day Without a Woman,” then let this post serve as a refresher on what actions, if any, you can take if one or more of your employees missed work to participate in an International Workers’ Day march.

If the employee was not authorized to participate, his refusing to work when scheduled in order to march constitutes a strike. However, even though considered a strike, your employee may be protected if his activity yesterday was considered protected concerted activity under the National Labor Relations Act, i.e., if there was a sufficient nexus between employment-related concerns and the specific issues that were the subject of the march.

When the motivation for political activity is a national political issue that you as the employer have no control over, such activity will not be protected. In such cases, you may choose to discipline an employee for violating your well-established and neutrally applied policies (you have them right?). On the other hand, when your employees withhold services as an economic tool in their employment relationship with you, such activity is protected. If workers are taking action to alter the terms and conditions of their employment and you as their employer have the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act, and any action taken against the employee could subject you to liability.

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

New Information About “A Day Without A Woman” Provides Some Insight to Employers

WomensMarchFlyerInstagram4Recently, additional details were released regarding the March 8, 2017, A Day Without A Woman, organized by the same group responsible for the Women’s March in January. In addition, other groups, such as the International Women’s Strike, are now planning their own events on March 8, International Women’s Day. Some of these organizations are encouraging women to ask their employers for the day off, while others appear to suggest women should actually refuse to work. When an employer approves the time away from work, then employees are not really engaged in a “strike” in the traditional understanding of the word. On the other hand, refusing to work when scheduled without employer approval is a strike.

As explained in our previous post, the purpose of the strike determines how an employer can legally respond to its employees that refuse to work. If workers are taking action to alter the terms and conditions of their employment, and their employer has the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act.

The basic platform set forth for A Day Without A Woman, as explained in the draft letter to employers that can be downloaded from the Women’s March website, is that the event is to recognize “the enormous value that women of all backgrounds add to our socio-economic system — and the pervasive and systemic gender-based inequalities that still exist within our society, from the wage gap, to vulnerability, to discrimination, sexual harassment, and job insecurity.” As stated, this platform appears to focus on national, general objectives that may weigh in favor of a finding that the activity is not protected by the National Labor Relations Act. Yet, as evidenced by the charges filed against several McDonald’s a few years ago, if employees’ own wages and work conditions are an inherent and primary motivator for their participation in the strike, then the strike may be protected.

Some employers may choose to support the national platform being proposed, and either allow those wishing to participate time off without question, or shut down their operations for the day. Other employers that are unable to provide such support and need workers in order to meet client expectations, may want to impose disciplinary action pursuant to a well-established policy applicable to employees who refuse to work. If this is the case, they should first ascertain the reasons for such refusal before imposing any such disciplinary action.

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

Managing Employee Participation in Social Movements: A National Strike for Women is Planned for March 8, 2017

The organizers of the Women’s March, which on January 21, 2017 drew an estimated three million participants worldwide, have announced that on International Women’s Day, March 8, 2017, they are planning a “General Strike: A Day Without a Woman.” Although the organization has not yet provided many details regarding its call to action, it is likely that as with last week’s national strike, “A Day Without Immigrants,” this event will include a call to supporters to refuse to report to work. Such a call to action will raise questions for employers regarding how they can respond to such political activity.

A walk out in support of a “General Strike: A Day Without a Woman” could be considered protected activity under the National Labor Relations Act, if there is a sufficient nexus between employment-related concerns and the specific issues that are the subject of the strike. When the motivation for political activity is a national political issue that the employer has no control over, such activity will not be protected and an employee’s discipline for a violation of well-established and neutrally applied policies is legally permissible. On the other hand, when employees leave work and withhold services as an economic tool in their own employment relationship, such activity is protected. For example, a few years ago, McDonalds’ employees held a nationwide strike in support of raising the national minimum wage. Although the national minimum wage was part of the reason workers refused to work, and their employers had no control over the national wage, the employees’ own wages and work conditions were an inherent and primary motivator for their participation in the strike. Thus, the National Labor Relations Board ascertained that a sufficient nexus existed for a finding that the strike was protected activity and filed complaints against several McDonalds challenging the disciplinary actions imposed on participating employees.

Since information is still forthcoming regarding this proposed strike, it is not yet clear whether participation in this event will be protected. Regardless, any action taken against an employee may be challenged through a complaint with the National Labor Relations Board, which has authority to enforce violations of the Act against both unionized and non-unionized employers. If your business is impacted by this event, before you make any disciplinary decisions, it is important to ascertain if the reason for the absence is related to any employment concern in your workforce.

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

Oh Joy! A Holiday Gift From U.S. Citizenship and Immigration Services: A New I-9 Form

Just in time for the holiday season the U.S. Citizenship and Immigration Services published a revised form I-9. If you forgot, this form is used to verify the identity and employment authorization of individuals that are hired for employment. Now, in addition to the traditional “print and complete” version, an electronic version is available that will detect when a required portion has not been completed. This new form, however, does not have instructions on it. Don’t you just love when new toys do not come with instructions? Luckily the instructions have not been forgotten, merely transported into a separate document that is a whopping 15 pages long.

The new form has several differences from its predecessor. For instance, the translator certification is no longer on the form, but is now a supplement to the form. As a consequence, it is important that those in your organization responsible for any part of the I-9 process become familiar with the changes before January 22, 2017, when employers are required to use the “new and improved” I-9 form. The form can be downloaded here, and the instructions can be downloaded here.

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

Starting in 2017 Federal Contractors Will Be Required to Provide Employees Paid Sick Leave

Last week the Department of Labor issued a final rule requiring federal contractors entering into contracts on or after January 1, 2017, to provide up to 56 hours of paid sick leave to employees.  This rule does not require those employers that already offer equivalent or more generous paid time off plans than that required by the rule to increase the benefits offered to employees. The new rule applies to those contracts that are covered by the Service Contract Act or the Davis-Bacon Act, concessions contract, and service contracts in connection with or federal property or lands. Covered employers will need to post the “Paid Sick Leave for Federal Contractors” poster, which can be downloaded from https://www.dol.gov/whd/regs/compliance/wh1090.pdf.

More information about those contracts that will be impacted, what employees are covered, employee eligibility, carry-over rights, and coordination with existing collective bargaining agreements can be found at https://www.dol.gov/whd/govcontracts/eo13706/.

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

Is It Time to Review Your Handbook Policies?

Earlier this month I posted about two decisions by the National Labor Relations Board finding employers’ workplace conduct policies and policies prohibiting recording people or confidential information in the workplace to be in violation of the National Labor Relations Act.  You can read the post here. Although it has not even been a month, another employer’s policies are being scrutinized by the NLRB for several of its policies: social media, email, confidentiality, workplace conduct, use of computer systems, solicitation and distribution, outside employment and internet use. Policies that have typically been accepted as legally compliant are now under attack. If you have not had your handbook reviewed in the last year or so, it may be time.

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