Thank you to all who attended our first HR webinar last week! We hope you found the information about your most basic HR protections helpful. It was great to hear your feedback. We are already looking forward to the next in our series, “Avoiding the Handbook of Epic Failure.” Registration is open for the April webinar (see below for more information).
As promised, here are some of the questions we have received since the webinar:
Q: We are having issues with some of our Hispanic employees using different surnames on documents. Some have several different surnames and their IDs do not match. How should these records be handled?
A: The best way to handle names is to require all employees to use the name that appears on their passport or work authorization. You can require your employees to use only that name on all company documents and forms. (Even Social Security cards can be a problem as they are limited on space and sometimes do not have the full, correct name).
Establishing employee identification numbers based on those names also aids in records management.
If you still see mismatches, it would be best to simply ask the employee why there is a discrepancy. If you are dealing with a language barrier, provide the employee with a form, translated into their language, onto which the employee should write down exactly what his/her name is (the name that should be used on all legal and tax forms). Then, use that as the basis for the personnel files.
To help you sort out what you already have, you might also ask them to include on that form any aliases that they have used since being employed by the Company – but be sure to make it clear that, going forward, all employment-related forms MUST show that official, legal name in order to ensure prompt/accurate payroll, manage benefits correctly, establish emergency contacts for each employee and to maintain confidentiality of all personal information.
Even with that, you clearly can’t control all the forms that come to you for filing. All you can do is make your best educated decision based on the documents they present.
Q: We have an employee currently on workers’ comp. He was on light duty for a significant number of months during which time we had numerous discipline issues. He is back to full duty but still being monitored by the doctors. Meanwhile, he continues to have poor attendance and poor job performance. Once he is released, we’d like to make his resignation a part of his settlement package. Will asking for his resignation as part of a comp settlement result in a possible retaliation claim?
A: No. You should have no fear of a retaliation claim as long as the employee has signed off on the settlement agreement which should include his agreement to resign and not hold the company liable for that decision.
Q: Since an employer has to pay an exempt (salaried) employee even if they are out a full day due to illness or inclement weather, can we require that employee to use a sick day, even it if they have to go negative into their sick bank?
A: Yes you can. But the question then becomes what are you going to do with the employee’s negative sick bank? Would you ever deduct it from their pay at any point? If so, we must also ask, how accurately do you keep track of sick leave use? If your records are vague regarding whether a given absence was a full day, a half day, or just an hour or two, or if it was taken when the employee had no available leave, you may run into trouble should you need to defend your deduction. Here’s why . . .
According to the Fair Labor Standards Act (FLSA), certain limited exceptions permit deductions from an exempt employee’s pay under specific circumstances. Among these exceptions is an absence for one or more full days for sickness or disability where the employer has a plan to reimburse loss of salary for such reasons. In this case, the salary of an exempt employee may be docked in full-day increments if that employee has already exhausted their allotted sick leave (according to your company’s sick leave/paid time off policy).
You can either deduct from the employee’s pay for that week or you may choose to allow your exempt employee to “borrow” full days from future sick leave, thus creating a negative balance in their sick leave bank. In many states, including Pennsylvania, this can be considered a “bona fide” loan. In this case, you are allowed to deduct the amount “due” to the employer upon termination of employment, but ONLY if you get the deduction from pay authorized by the employee in writing.
Q: There is some confusion on our staff as to who is hourly and who is salaried and how that impacts benefits packages. Is this simply a matter of indicating in the Employee Handbook that ‘you are hourly unless described otherwise’?
A: Ideally, you should have a job description for every role in your company. Those job descriptions should include the employment classification for that position, whether it is “exempt” (salaried) or “non-exempt” (hourly). Then, in your employee handbook you should define these classifications, including eligibility for benefits.
In the handbooks that we write for our clients, we include definitions for part-time and full-time employees in a section called “Employee Classifications”. Additionally, we make sure to define which classifications of employees are eligible for benefits participation in the Benefits section. In your situation, if your part-time and full-time employee status changes for the benefits package, then I would define that in both the employee classification section and in the individual benefits section.
Here is some sample language you can use to define these classifications:
• Full-time: A full-time employee is regularly scheduled to work at least 40 hours per week in a standard work week. (For the purposes of health insurance only, according to Federal law, employees regularly scheduled to work at least 30 hours per week will be considered full-time and will be eligible for the same health benefits offered to employees working 40 hours per week in a regular work assignment. Please contact your Human Resources Representative if you have questions about your status.)
• Part-time: A part-time employee is regularly scheduled to work less than 40 hours per week in a standard work assignment.
Q: We are very lenient when it comes to allowing employees to be tardy or absent due to inclement weather. However, we do have a few folks that live within a mile of the office and choose not to come in during inclement weather while, on the same day, their counterparts drive 12 miles to the office and show up on-time. How can we handle this?
A: You do want to be careful that you treat all employees consistently, thus avoiding anything that could be interpreted as discriminatory. In other words, you should not consider it an unscheduled absence for those employees who live down the street from the office when they can’t come in due to the weather, if you consider it “ok” when the employee who lives 12 miles away can’t come in. While it’s not technically illegal to treat these groups differently, we would not recommend discriminating against these two groups based on their geographical location.
We see some employers have the same types of questions when it comes to weather-related absences and child care issues. For example, do you consider it an excused absence if a female employee can’t come in on time because her kids have a two hour delay, yet treat this as an unscheduled absence if a single man would arrive two hours late due to weather? In that example, that would be a discriminatory action since in most states you cannot discriminate against an employee based on their marital or family status. Instead, I would set company ground rules and notify the employees that when the office is open but the weather is bad, they can either work from home (if that is an option) or they must use a PTO day. Otherwise, if the office is open, they should make it in as soon as they can in a safe manner.
Q: I wish our supervisors could learn more about these HR issues. Does ECRM offer supervisor training?
A: Yes, we do! Our HR team will be happy to work with you to develop a training program tailored to your team’s needs, whether it’s how to hire the right people, sexual harassment training, handling disciplinary issues, terminations, and everything in between. Give us a call at 724-864-8745.
Don’t miss the next webinar in this series, “Avoiding the Handbook of Epic Failure.” It is scheduled for Thursday, April 17th at 11:00 a.m. To register today, please click here.