Welcome

As the summer season ends and the fall season begins, we hope your business continues to prosper towards year end.

HR Alerts

New Labor Law Posting Requirement. Scheduled to take effect on November 14, 2011, most private employers will need to post a new notice about employee workplace rights under the National Labor Relations Act (NLRA). The notice would state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, as well as to refrain from any of these activities. It also provides examples of unlawful employer and union conduct and instructs employees how to contact the National Labor Relations Boards (NLRB) with questions or complaints.

Proposed OFCCP Compensation Data Collection Tool. Through the middle of October, the Office of Federal Contract Compliance Programs (OFCCP) will be accepting public comments on the agency’s development of a new compensation data collection tool that would identify potential compensation discrimination issues warranting further review by the OFCCP or self-audit by the contractor.

EEO-1 Report Deadline. By September 30, 2011, private employers (with more than 100 employees) and federal contractors (with 50 or more employees and a contract of at least $50,000) are required to file an EEO-1 Report with the Equal Employment Opportunity Commission (EEOC).

Annual Benefit Limits Waiver Deadline. By September 22, 2011, plans already receiving waivers from annual limit requirements will have the opportunity to reapply. The Centers for Medicare & Medicaid Services (CMS) had issued guidance for health care plans seeking to renew waivers on annual benefit limits below $1.25 million for plan years starting after September 23, 2011 and below $2 million for plan years starting after September 23, 2012.

OSHA’s New Smartphone App. On August 11, 2011, the U.S. Occupational Safety and Health Administration (OSHA) launched a smartphone application that enables supervisors and workers to monitor the heat index at their work sites in order to prevent heat-related illnesses.

The U.S. DOL’s Smartphone App…Made for Your Employees, Part II

As described in Part I of last month’s August 2011 HR Article of the Month, the U.S. Department of Labor (DOL) had launched its “DOL-Timesheet” smartphone application designed specifically for employees. The app marks another step in the DOL’s strategic “Plan / Prevent / Protect” initiative of increased workplace compliance enforcement efforts. This app also serves to warn employers to ensure that systems and processes account for accurate employees' hours worked.

Interestingly, only 10% of those who participated in the HR Support Center’s August Poll of the Month stated that they have already seen the U.S. DOL’s timesheet smartphone app. However, 50% of the participants had no awareness of its existence until taking the poll. As news of this tool continues to spread, many more employees likely will be equipped with it and be more strongly positioned in wage and hour complaints.

What else does this mean for employers as employee awareness grows? At minimum, it means that employers like you must make sure the business complies with its obligations under the federal Fair Labor Standards Act (FLSA) and can prove it in terms of: 

• Exempt versus non-exempt classifications
• What constitutes hours worked
• How overtime pay is calculated
• Timekeeping documentation
• Record retention requirements (e.g. certain payroll records must be kept for at least three years)

What added challenges are anticipated?

• Discrepancies may exist between the employer’s and employee’s records, due to record-keeping errors (whether intentional or not) as well as limitations in the app. For example, an employee may clock in/out of the app at times which may be different from the times clocked in/out of the company’s timekeeping system.
• An employee may intentionally manipulate the app’s time entries with the intent to get more pay.
• In the absence of employer records, the employee’s records could be used as a basis for wage and hour claims.

What immediate actions can you take?

• While you may set policies to regulate usage of company-provided devices including unauthorized downloads of applications, do not prohibit employees from using the app on their personal devices. Doing so may be perceived as an employer act of unlawful retaliation.
• Require employees and their supervisors to verify (with signatures) the accuracy of time records.
• Establish or revise any internal complaint and resolution process to allow employees to easily report pay issues.
• Review and update as needed relevant employee handbook policies.
• Make sure that the timekeeping and record retention systems are consistent and accurate.
• Regularly audit the company’s time records, which need not be retained in their original form but must be accessible, clear, and identifiable.
• Ensure that employees are properly classified as exempt or not exempt from state and/or federal overtime provisions.
• Regularly educate and update supervisors and managers of any wage and hour law changes or related case law decisions.

With employees who are now better equipped and thus more informed of their workplace rights through the DOL’s Timesheet app (and others to come), an employer’s best defense is to build a solid compliance system that produces better records than those made by employees.

Question & Answer

Job shadowing

Q. May an employer directly fine an employee who commits an OSHA violation?

A. Job shadowing is an optional work experience where individuals volunteer to learn more about a job by directly and purely observing an employee or group of employees going through their regular work duties.

If the individual already has been hired, then "shadowing" would be considered a job-related responsibility or duty and the individual would need to be paid for that time. Depending on the nature of the job shadow, the rate of compensation could be negotiated but should be no less than the minimum wage rate.

However, if this individual is not hired at all and job shadows on a voluntary basis, is not doing any activity that could be construed as work, and is shadowing for his or her own benefit (and not for the benefit of the employer per se), then no compensation payment is needed.

Invest with Tuition Reimbursement

Employers can provide tuition reimbursement as a strategic employee benefit incentive to help attract and develop employees to excel and grow with the business. Tuition reimbursement typically helps employees with fees and expenses regarding course registration, materials, training, etc. Many perks exist when employers offer tuition reimbursement:

• Low turnover rates and stable retention rates enable savings in recruitment and hiring costs.
• Employee loyalty, appreciation, and professional image increases.
• New skills and knowledge acquired contribute to increased productivity.

With the time, effort, and money directed towards providing a tuition reimbursement program, employers will also want to ensure that employees who benefit from the program stay and not leave and take their newfound skills and talent to work for a competitor. To offset this concern, many employers require employees to make certain commitments to the company in exchange for having their tuition and related expenses paid. Examples include requiring the employee to:

• Work for a minimum timeframe after the completion of the program before expenses are reimbursed.
• Maintain a specific grade point average (GPA) to qualify for reimbursement.
• Repay any funds already paid if the employee terminates employment before completion of a course.

Also, when planning to establish a new or revise a current tuition reimbursement program, keep the following suggestions in mind:

• Know your budget to effectively manage costs and expenses.
• Provide clear program guidelines on the conditions for approved tuition reimbursements.
• Review the company’s employee handbook to ensure that relevant policies (especially those regarding advancement opportunities) are updated in alignment.
• Engage in on-going discussions with employees concerning their individual interests and growth opportunities within the company – all of which can be memorialized with an individual development action plan.

Supporting employees in their educational growth and allowing them to apply their learning on the job in ways that translate into increased productivity and profit can speak volumes of how a company can experience a high return on its investment in employee education.

Tool of the Month: 

Performance Appraisals Review Checklist

The Performance Appraisals Review Checklist helps managers with a quick reference to ensure clear communication of performance expectations and of how each employee’s work contributes to the company’s strategies and goals. The checklist topics include:

• Planning the Appraisal Meeting
• Evaluating Past Employee Performance
• Establishing Objectives towards the Future
• Conducting the Performance Appraisal Meeting
• Coaching for Performance Excellence

Download the Performance Appraisals Review Checklist from the HR Support Center under the Essentials section and in the Checklists area.

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