TruPay Compliance Digest

Compliance

Staying informed is the key. 

COmplianceOrganizations of all sizes face the daily challenge of complying with federal, state and local laws. More and more organizations indicate that maintaining compliance with regulations and reporting requirements is a driver for their organizational strategies.

No matter what approach your company takes to maintaining compliance, it all starts with knowing the rules. Only by staying on top of the ever-changing regulatory landscape can an organization hope to create, implement and maintain an effective compliance program. We've assembled some articles and answers to prominent regulation questions that are prevalent concern in the world of workforce management.

 

Are Job Descriptions Required by Law?

Job DescriptionsJob descriptions are not required by law, but they’re certainly great to have and serve several purposes. Often, the responsibility for writing and organizing job descriptions falls to the human resources team. Here are three points to keep in mind.

First, a job description, when accurately written, should reflect the actual work done. The applicant or employee can see what will be expected of them and to what they’ll be held accountable. The job description helps eliminate any confusion about what job duties are assigned to the employee. It will also prove useful when conducting performance evaluations and goal setting, as you will have a clear description of what the employee is expected to accomplish in their position.

Second, a well-written job description will list the essential functions of the job and the knowledge, skills, and abilities required to do it. This information will be useful as documentation in the event an employee misrepresented their qualifications for the position or is simply not performing to the expected standard. With a clear job description, you’d be able to terminate the employee with less risk of an unlawful termination claim or compliance issues.

Finally, a job description should indicate the basic expectations for the person in the position, including how many hours per week you expect from an employee, whom they report to, and whether the position is non-exempt or exempt. This allows an employee to be aware of the time commitment, whether to expect overtime pay, and whom they should go to with questions. 

4 Federal Laws That Apply to Companies With 15 or More Employees

Federal LawsOnce you have 15 employees, certain federal laws apply to you. Here is a brief summary of what you need to know about them: 

  • Americans with Disabilities Act (ADA): Protects qualified individuals with disabilities from unlawful employment discrimination, prohibits discrimination where an individual is able to perform their essential job functions, and requires an employer to make reasonable accommodations for disabled individuals unless doing so would place an undue hardship on the employer.
  • Genetic Information and Nondiscrimination Act (GINA): Prohibits the use of genetic information in employment and restricts employers from requesting or requiring genetic information. 
  • Pregnancy Discrimination Act (PDA): Protects pregnant employees from being retaliated against in any way due to pregnancy, child birth, or any related medical conditions.
  • Title VII of the 1964 Civil Rights Act: Prohibits discrimination in all terms and conditions of employment (including pay and benefits) on the basis of race, color, national origin, religion, and sex. Note that several federal courts have ruled that sex includes sexual orientation, and one has ruled that it includes gender identity as well.

These are only the FEDERAL laws that apply to companies with 15 or more employees. Remember, there may also be additional state laws that apply as your company grows. Feel free to reach out if you would like more information about them.

Form I-9 Documentation Issues

Form I-9 DocumentationIf you discover a document that clearly looks fraudulent, or like it does not identify the correct individual, you should talk with the employee about it and ask them to provide alternate documentation from the list of acceptable documents. 

On the other hand, if you only find a copy of a document that is hard to read, unclear, or confusing to you, no action may be required. The US Immigration and Customs Enforcement (ICE) guidance related to internal I-9 audits specifically states that an employer “should recognize that it may not be able to definitively determine the genuineness of Form I-9 documentation based on photocopies of the documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear.”

There aren't always easy answers for how to handle situations that arise during internal I-9 audits. An employer must balance the risk of being found to have knowingly continued to employ someone without valid work authorization against the potential that their actions will lead to a claim of discriminatory treatment based on immigration status.

Illegal Interview Questions

Can an Employee Submit a New W-4 at Any Time?

W-4You have employees fill out the W-4 so you can withhold the correct federal income tax from their pay when processing payroll. You should consider having employees complete a new Form W-4 each year. However, an employee may submit a new W-4 anytime they have personal or financial changes. Often, they’ll submit a new form when they know they’ll be changing exemptions, adjustments, deductions, or credits on their return. 

For example, an employee may want to increase their withholding by decreasing the number of dependents they claim. Or they might want to add dependents to decrease the amount withheld. Life events such as marriage, divorce, and childbirth are common reasons to update a W-4, but employees can generally change their withholding allowances at any time and for any reason. 

According to the IRS, employees who are making changes due to a divorce (if they’ve been claiming married status) or for any event that decreases the number of withholding allowances they can claim should submit a new W-4 within 10 days.

For employers to maintain compliance, when a new W-4 is received, the new withholding amount should be put into effect no later than the start of the first payroll period ending on or after the 30th day from when the employee submitted the replacement Form W-4.

Guidelines for Federal Workplace Posters

federal workplace postersYou currently have the federal workplace posters displayed in the lunch room. You want to use that space on the wall for other things, and you're thinking of moving the posters to the employee entrance. What are the posting location guidelines?

Generally, federal workplace posters must be displayed in conspicuous places where they are easily visible to all employees. Some states have their own workplace posters and posting requirements as well. To comply with these legal requirements, employers typically place all workplace posters in a break room or similar location frequented by employees.

Interestingly, the Family Medical Leave Act (FMLA), Equal Employment Opportunity (EEO), and Employee Polygraph Protection (EPPA) posters must be placed where they can be seen by applicants for employment. 

If your applicants and interviewees also come in through the employee entrance, it may be okay to move the posters there. I would suggest, however, that you keep the posters in a breakroom or lunchroom. That way it can never be said that employees don’t have access to the required postings, and you won’t jeopardize your compliance with the posting requirements.

What Are "White Collar Exemptions"?

White Collar Exemptions"White Collar Exemptions" are exemptions under the The Fair Labor Standards Act (FLSA) that typically refer to people who work in offices or other professional environments.

The FLSA is a federal law requiring that most employees receive at least minimum wage for each hour worked and overtime pay for hours worked over 40 in a workweek. Some employees, however, are not entitled to overtime, while others are not entitled to overtime or minimum wage. Employees who are entitled to both minimum wage and overtime are called non-exempt, while those who are not entitled to both are called exempt.

The FLSA lists quite a few exemptions. The most commonly used (particularly in office settings) are the executive, administrative, and professional exemptions. These are known as white collar exemptions, and employees who are properly classified this way are not entitled to minimum wage or overtime. But, to qualify, each position must pass a three-part test:

  1. Duties: The employee must perform specific tasks (such as managing at least two people) and regularly use their independent judgment and discretion. Each exemption has its own duties test.
  2. Salary level: The employee must make at least $455 per week (equal to $23,600 per year).
  3. Salary basis: The employee must be paid the same each week regardless of hours worked or the quantity or quality of their work. Reducing an exempt employee’s pay is only allowed in very narrow circumstances.

If an employee meets all the criteria under one of the white collar exemptions, the employee may be properly classified as exempt and will not be entitled to minimum wage or overtime pay. If the employee does not meet all the criteria under a specific exemption, they must be classified as non-exempt, and paid at least minimum wage and overtime when applicable. 

Exempt Employee

Wage Discussions -- and 6 Other Things You Can't Prohibit 

Wage DiscussionsEmployers may not prohibit, or even discourage, employees from discussing their wages with one another. Likewise, employers may not in any way discipline or retaliate against an employee for discussing their wages or other terms and conditions of employment. Prohibitions of this nature infringe upon employees' protected rights under Section 7 the National Labor Relations Act (NLRA).

The NLRA grants all employees (not just those in unions) the right to organize and engage in "concerted activity . . . for the purpose of mutual aid or protection." This includes discussions about wages, benefits, managers, facilities, safety issues, and just about anything else that two or more employees might have a stake in, or opinion about. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity:

  • Employees discussing how much they are being paid, whether via email, break room chat, or a conversation on someone's Facebook wall;
  • Individual employee complaints regarding wages or employment conditions, if they reflect general workforce discontent or are attempting to elicit the support of co-employees to correct a problem;
  • Employees discussing improving working conditions with other employees;
  • Circulating a petition asking for better hours;
  • Participating in a concerted refusal to work in unsafe conditions;
  • Employees joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace

The Rules Regarding Religious Accommodations in the Workplace

Religious Accommodations in the WokplaceWhat is an employer to do when an employee asks for Sundays off to worship, or rest breaks twice daily for prayer?

Equal Employment Opportunity law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause “more than a minimal burden” on the operations of the business. Therefore, the organization is statutorily required to make reasonable adjustments to the work environment that will allow employees to practice and adhere to their religious beliefs.

That leaves many employers wondering how to evaluate such requests.  Here are a few questions that should be considered when evaluating a request for religious accommodations in the workplace:

Would accommodating the request require more than minimal business costs?

Would approving the request substantially diminish productivity and/or efficiency?

Would accommodating the request pose a safety exposure or threat to the employee or others?

Would approving the request result in placing an undue and significant burden on other employees?

If you answer “yes” to any of these questions, you are most likely not required to accommodate the request.  However, it is essential to thoroughly consider these questions in good faith and document the concrete reasons demonstrating how accommodation of the request would place more than a minimal burden on business operations.

When is it Time to Pay for Travel Time?

Travel TImeHow to properly pay for travel time can be very confusing. Whether or not an employer needs to compensate a non-exempt employee for travel time depends much on the type of travel involved. To maintain compliance with federal laws, keep in mind the following four rules-of-thumb regarding employee travel:

The Portal-to-Portal Travel rule includes an employee’s regular home-to-work and work-to-home travel at the beginning and end of a single workday. Unless the employer established a workplace policy offering pay for such travel, an employer does not need to pay an employee for regular home-to-work and work-to-home travel.

The Travel between Worksites rule involves travel within a single workday between multiple worksites. An employer is required to pay an employee for travel time from one worksite to another during a day’s work if the employee must travel to perform the day’s work. An example would be tow truck drivers traveling to different locations to service vehicles during the day.

The Special, One-Day Assignment rule applies when an employer requires an employee (usually working at one location) to report to a different worksite for the workday which thus may entail a longer than usual travel situation. For example, Employee X travels to another office in a city 50 miles away for a training workshop, and the employee returned home the same day without an overnight stay. In turn, this employee generally should be paid for the travel time because the one-day assignment was to a location beyond the employee’s normal commute.

The Overnight Travel rule applies whenever travel requires the employee to stay overnight and away from his or her home. In such situations, the time an employee spends traveling during his or her regular work hours must be compensated, even on non-workdays like weekends. An employer, however, does not have to pay for travel time occurring outside of the employee’s regular work hours, unless the employee is required to drive or performs work during that time.

Federal Travel Time Rules

Do You Have to Pay Employees for Outside Training?

Pay Employees for Outside TrainingOff-site training and continuing education are useful tools you can use to upskill your workforce. But they are an investment. At the very least, you will most likely be required to pay for the hours an employee spends at a training course and those hours must count toward any overtime calculation.

The time that employees spend in training courses is considered hours worked unless all four of the following criteria are met:

  • Attendance at the course is outside regular working hours;
  • Attendance is completely voluntary;
  • The course is not directly job-related; and
  • The employee does not perform any productive work during the course.

To determine whether the training is "directly job-related," you must ascertain whether the purpose of the course is to make the employee more efficient and effective in their current position. If the outside training is intended to develop the employee for an advancement opportunity or is for college credit, it most likely can be excluded from the "directly job-related" category. 

As a side note, it is permissible to pay employees for outside training at a lower rate for their training time (as long as that training rate meets or exceeds minimum wage). However, to do so, you must notify the employee in writing of the pay rate the company will use for training hours. The required notice period varies from state to state.

What Are the Rules Regarding Unpaid Interns?

Unpaid InternsTo maintain compliance, make sure your human resources team knows the rules regarding unpaid interns. The Department of Labor uses the following six criteria to determine if someone is an unpaid intern:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the end of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship

Four Misunderstood Terms in the Americans with Disabilities Act

Americans with Disabilities ActThe Americans with Disabilities Act (ADA) applies to a lot of organizations—all public employers and any private employer with 15 or more employees. Nevertheless, there’s a lot of confusion about what the law requires. Fortunately, while there’s no getting completely around the inherent ambiguity of the ADA, employers can feel confident in their application of the law by reviewing and understanding its most important concepts. In this article, we’re going to define and analyze the terms disability, undue hardship, reasonable accommodation, and interactive process. These are the big four terms to know.

Disability
Let’s start with the term disability. According to the ADA, a person with a disability is someone who has a physical or mental impairment that substantially limits one or more major life activities, someone who has a history or record of such an impairment, or someone who is regarded as having such an impairment.

Reasonable Accommodation
Employers also encounter the ADA when an applicant or employee asks for a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.” Reasonable accommodations “can cover most things that enable an individual to apply for a job, perform a job, or have equal access to the workplace and employee benefits such as kitchens, parking lots, and office events.”

Undue Hardship
Under the ADA, an employer is required to provide reasonable accommodations as long as doing so does not create an undue hardship on the organization. According to the EEOC, an undue hardship is a significant difficulty or expense. The cost of an accommodation could be an undue burden on the employer, but so could an accommodation’s duration, expansiveness, or disruption.

Interactive Process
If an employee requests an accommodation, the employer should engage in an interactive process to determine if it is reasonable. The EEOC describes the interactive process this way: the employee and the employer “communicate with each other about the request, the precise nature of the problem that is generating the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting an individual’s needs.”

Americans with Disabilities Act

How to Deal With an EEOC Complaint

EEOC ComplaintThe EEOC enforces discriminatory employment laws, such as discrimination based on age, race, gender, sexual orientation, and disability. While the most frequently filed charges remain involved with race, sex, and retaliation allegations, many complaints deal with age and retaliation charges. No matter how petty a complaint seems, every employer should take every employee complaint seriously.

An employee’s initial step outside the company in alleging workplace discrimination is filing a claim with the EEOC. How your company responds to the employee’s claim is crucial. If you are presented with a claim, the following is a simple guideline of what the EEOC wants from you:

1. Cooperation. Acknowledge receipt of the claim, and pose any questions with the investigator about the process.

2. Information. It all starts with the evidence you gain through an investigation of the charge, and pros and cons of developing formal report do exist.  On the positive side, a good report represents an objective record of the evidence gathered, the determination of events, and the recommendations and actions taken as proof of how your company took steps to address the situation. 

3. Communication. Once you have finished your investigation, inform the EEOC of the outcome in a “position statement.” The position statement is your written explanation of non-discriminatory reasons for having taken adverse employment action(s) about which the “charging party” – the prospective, current, or former employee – filed the EEOC complaint

What Happens When an Employee Injury Occurs During a Break?

Employee InjuryAn employee injured themselves while on break and had to be taken to urgent care. Does this injury fall under workers’ compensation even though it occurred during a break?

Whenever you are made aware of an employee injury or accident during the workday or at the workplace, your best course of action is to file a claim with your workers’ compensation carrier. Once the claim is in their system, you can work with the carrier to determine if the claim is valid. If you have concerns, you can (and should) raise them with the carrier.

Once the carrier has the claim and related information, they can analyze the issue and decide whether they want to dispute or negotiate the claim and what employee benefits will or will not be offered. Like you, they want to control costs, so they will be on your side as circumstances allow.

If the employee does not wish to file a claim, you should still have them complete the claim form to document the incident. You should also be sure to document that the employee declined to file for benefits. Failure to do so may result in a compliance issue at some point in the future.

Workplace Surveillance and Employee Monitoring

workplace surveillanceWith the growing advancement of recording technology and its application in the workplace, some employers have established electronic surveillance recordings of workplace activities as well as recordings of in-person staff meetings for future reference. Employers, however, also need to be aware of federal and state laws that place restrictions and penalties on wiretapping.

Take the time to review your company’s current workplace surveillance, monitoring and wiretapping practices and consider the following action items to ensure compliance with laws and regulations:

  • Develop workplace policies that describe how employer-sanctioned wiretapping and surveillance, if applicable, will be used in terms of business operational needs.
  • Develop policies forbidding employees to conduct any workplace recordings without the approval and consent of the employer.
  • Employers should obtain written consent (signed and dated) from each worker or attendee involved with the workplace (even for meetings) who may be “recorded”.
  • Train supervisors on effective communication skills and management of sensitive information.
  • Consult an HR Professional regarding how to address any employee-initiated recordings, which can often be a by-product of a more significant underlying workplace issue.

Read This Before Posting Employee Photos Online

Posting Employee Photos OnlineShould employers get permission from employees before posting pictures of them on the company website or social media accounts?

Yes, we recommend obtaining written consent from employees before posting pictures of them on company websites or social media. 

In today’s age of social media, many or most of a company’s employees may already have their photos posted on the internet. Privacy legislation still requires an employer to seek consent, however, before posting photos of employees online.

Using someone's picture without their consent could violate their right to privacy cause a compliance problem for your organization. Some employees may have reasons for not wanting the public to know where they work (for example, if they are the victim of stalking), or they simply may not feel comfortable having an image of their face published online. 

When obtaining consent from your employees, let them know how you intend to use photos of them and that they should sign the authorization only if they feel comfortable doing so. Although the most employees probably will not object to having their photo on a company website, human resources should still have them fill out and sign out a consent form before posting employee photos online.

Investigating Employee Complaints

The Rules of the Resignation Notice Period

Resignation NoticeIf an employee puts in their notice, can you let them go that day instead of keeping them for the full notice period? Are there any compliance issues you need to be aware of?

Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee's resignation early.

First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work. 

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy. 

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work.