COVID-19 Employer Resources and Compliance Toolkit

March 26, 2020

During these uncertain times, Miami Payroll Center is keeping up to date on all legislative and tax related responses to the COVID-19 crisis as they relate to small businesses and their employees. As additional information becomes available from related government agencies such as the Department of Labor and the IRS, this page will be updated accordingly.

On Wednesday, March 18^th, the President signed the Families First Coronavirus Response Act to take effect on April 1, 2020 and will sunset on December 31, 2020. The Act provides for mandated paid emergency sick leave and paid family and medical leave for many workers. To offset wages paid under the program, employers will receive a tax credit. There are still several uncertainties, such as the timing of the credits to offset the payments required by employers. Many of the details for implementation are still unknown until individual government agencies, e.g. DOL, IRS, release their own guidance between now and April 1, 2020. As additional details are released for implementation, we will update the information on this page.

If you have specific questions as to how these changes may affect your business, please contact us at 305-273-4066.

Useful Links

COVID-19 Miami Payroll Center Published Resources

IRS Updates

The IRS has established a special section focused on steps to help taxpayers, businesses and others affected by the coronavirus. This page will be updated as new information is available.

Can you force independent contractors to attend training?

June 5, 2018

Your business depends on the work of contractors, but you have to train said contractors to service your clients the way you want them served. Can you force contractors to attend training? That’s the question before many companies today as the size of the contract and on-demand workforce continues to explode.

The degree to which an employer “controls” aspects of the job and how it is performed is one of the main factors the IRS uses to gauge the classification of an employee or independent contractor. Facts that provide evidence of the degree of control and independence fall into three categories:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Since independent contractors bring their existing talents and skills to a job, providing additional training to a contractor might fall into the area of behavioral control and endanger their contractor classification. So, what do you do if you can’t require independent contractors to attend training but need them properly trained to service your business?

For one, you can provide incentives for your contractors to take the training you offer. These incentives can be monetary or otherwise. An example of a monetary incentive would be for example you pay a higher hourly rate to contractors who have completed X training program. Another monetary reward could be to offer select (think premium) project opportunities to contractors who have completed X training program.

Non-monetary rewards for completing training are even easier to devise. For example, you can maintain a list or database of contractors who you will turn to for desirable contract work that is only open to contractors who have completed X training program(s) that you offer. Mention this requirement to contractors currently operating within your business and watch them make time to learn skills more valuable to you.

There are many other ways to design training requirements for your independent contractors that will have them voluntarily coming to you to attend without violating the IRS’s independent contractor requirements- if you would like help designing your training courses to meet this business need, please reach out to us here at the office (305) 273-4066. One of our Human Resources generalists or consultants will be happy to help you out.

Handling Sexual Harassment Allegations in the workplace, pt. 1

March 27, 2018

One of your employees walks into your office and complains of being sexually harassed by another of your employees, or worse- one of your customers. What do you as a small business owner do?

First things first.

Additionally, you do not under any circumstances want to retaliate against your employee for making the game. I don’t care if the claim is against your best sales person, a regular customer, or anyone else that you trust and value at your company.

What constitutes retaliation?

The Equal Employment Opportunity (EEO) laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting these EEO rights is called “protected activity,” and it can take many forms. One of those forms is making a harassment claim, or as the law puts it- participating in a complaint.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

For example, depending on the facts, it could be retaliation if an employer acts because of the employee’s claiming harassment to:

reprimand the employee or give a performance evaluation that is lower than it should be;
transfer the employee to a less desirable position;
engage in verbal or physical abuse;
threaten to make, or make reports to authorities (such as reporting immigration status or contacting the police);
increase scrutiny;
spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
make the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

Put simply, do not punish the employee in any way, shape, or form for coming forward- its their right.

Now, to investigate the claim

In almost all claims, you want to interview the victim making the claim. The interview should be conducted without bias, showing faith in the victims claim and courage in coming forward. You also want to protect the confidentiality of the victim to avoid any retaliation from their harasser if they are in a position of authority over the victim. You should listen intently to the victim, and show empathy throughout the entire claim reporting process.

We will have more on properly conducting sexual harassment investigations in a sequel to this post.

References:

EEOC site
https://www.eeoc.gov/laws/types/sexual_harassment.cfm

4 Tips to Giving Effective Employee Feedback

July 18, 2017

Ongoing performance feedback is crucial to fostering open employer-employee relationships. Here are 4 tips to make sure your feedback is effective in bringing positive changes to your company:

Make it timely. Give feedback as soon as a situation has occurred. Not only is the situation fresh in your mind, but it also makes it easier to address and find solutions to move forward.
Stick to the facts. Focus on what occurred, and don’t make any assumptions beyond that. For example, if your employee is continuously late to work, don’t assume they are lazy or don’t value being punctual. Instead, discuss the impact of tardiness and how that affects others and the company. Give the employee a chance to explain what causes them to be late.
Address one improvement at a time. Sometimes discussing several performance issues during one conversation can dilute the message. By focusing on one improvement at a time, you have better chances of your message being clear and having the employee fully grasp the problem at hand and what’s expected of them to resolve it.
Ask for their feedback. After sharing your feedback, ask your employee for their opinion on what was discussed. This will prove to you they have understood the information and what course of action is required. If the employee is on the same page as you are, acknowledge their insight and work on a performance plan together. The more buy-in, the more likely the person will be motivated to change.

Florida’s Tipped Minimum Wage

September 22, 2016

Each year by October 15^th the State of Florida determines what the following year’s minimum wage rate will be. Take a minute to check your calendar – we can expect this announcement soon! While many would like to think these decisions are completely left to politics and protesters, the minimum wage determination in Florida is actually made using a formula that ties the minimum wage to the consumer price index (CPI).[1]

Last October it was announced that there would be no minimum wage increase in Florida for 2016. The decision was a surprise to some, especially those in the hospitality industry which contains a large number of the state’s minimum wage workforce. However, since Florida has already established a minimum wage higher than the federal minimum, news of a flat year was welcomed by employers.

tips Employers in the hospitality industry have come to terms with Florida’s higher-than-federal minimum wage, but many struggle with the tipped minimum wage and how to ensure compliance when paying tipped employees. The current minimum wage in Florida is $8.05 per hour, with a minimum directly paid wage of at least $5.03 per hour for tipped employees (with tips making up the difference).

Thus, in Florida, the employer can claim $3.02 toward the $8.05 minimum wage as long as the employee actually receives $3.02 in tips per hour. If the employee does not receive $3.02 per hour in tips the employer must pay the difference so that the full minimum wage is met.

While we wait to see if the state minimum wage (as well as the tipped minimum wage and tip credit amounts) will change for next year, now is a good time to review related Department of Labor Rules.

To begin with, employers must provide tipped employees specific information from the start of employment[2]:

Notice of the amount of direct hourly wages it is paying a tipped employee, which must be at least $5.03 in Florida
The additional amount it claims as a tip credit, which cannot exceed $3.02
An explanation that the tip credit it claims cannot exceed the amount of tips actually received by the tipped employee;
A statement that all tips received by the tipped employee are to be retained by the employee unless there is a valid tip-pooling arrangement in place; and
An explanation that the tip credit will not apply to any tipped employee unless the employee has been informed of the tip credit provisions.

Two aspects seem to be at the root of many tipped minimum wage and hour disputes: Dual jobs and tip pools.

Many employers don’t consider their tipped staff to have dual jobs. However, if tipped workers are expected to spend some of their shift completing work that does not provide tips, they may have a dual job. Take a server for example. The server may spend four hours waiting tables, but then two additional hours cleaning, taking inventory, stocking table condiments, etc. The employer must pay the server the full minimum wage, without taking a tip credit, for those two hours.[3]

Another issue is tip pooling. Although tip pooling has potential benefits for employees, it can also be misused by employers. While many believe that back-of-house staff (line cooks, dishwashers, bussers, etc.) deserve a cut of the tip for their role in the dining experience, this practice cuts wait staff tip wages by more than 50%, which is definitely not in accordance with the law. According to the Federal Department of Labor, only employees who regularly receive tips can be part of the pool and employees must receive notice that they will be pooling. The law says that employees cannot be required to share their tips with employees who do not receive their own tips, like dishwashers or cooks.[4]

Whether or not the minimum wage (and tipped minimum wage!) will change next year as a result of the CPI formula or the presidential election, employers should review their payroll practices to ensure compliance and minimize the chance of wage and hour issues!

[1] http://www.orlandosentinel.com/business/brinkmann-on-business/os-florida-minimum-wage-20151019-post.html

[2] http://hr.blr.com/HR-news/Compensation/FLSA-Fair-Labor-Standards-Act/Florida-court-FLSA-rules-valid-tip-credits-pools/#

[3] http://www.nolo.com/legal-encyclopedia/florida-laws-tipped-employees.html

[4] http://www.danzlaw.net/blog/2016/06/understand-the-tipped-minimum-wage-laws-and-common-florida-violations.shtml

Political Debate in the Workplace: More at Stake than Lost Productivity

August 26, 2016

It’s election season and, unless you’ve mastered the art of conversation avoidance, it’s likely that you’ve been invited (or forced!) into a political discussion in the course of an average day. This election is a little “louder” than those of the past. With the constant media attention given to our current Republican and Democratic Presidential candidates, the campaign trail seems to have barged right into our homes and workplaces, mostly uninvited.

According to a new CareerBuilder survey, 3 in 10 employers (30%) and nearly 1 in 5 employees (17%) have argued with a co-worker over a particular candidate this election season, most often about Donald Trump.[1] This same survey reports that male employees (20%) reported a higher incidence of arguing about politics at work than female employees (15%). Comparing age groups, at 24% younger workers (those between the ages 18 and 24) are the most likely to report engaging in heated political debates at work.

loss_productivity Beyond potential morale and productivity issues, political debate in the workplace may create a potential liability for employers. Conversations around our current Presidential candidates can easily focus on race, sex or religion. This can provide grounds for harassment, discrimination or other types of workplace complaints.[2]

Before we pull out our pens to write a new policy on political debate, let’s remember one thing: Employees don’t have a Constitutional right to free speech or freedom of expression at work.[3] The first amendment applies to government censorship, not workplace censorship. The Constitution allows private businesses to regulate speech in the workplace, and even to bar political discussion entirely. Public employees are more protected by free-speech rules, but even government offices can impose limits.

Still, the potential liability should not be dismissed. It would be nearly impossible to ban all political discussion in the workplace. Chances are that your current policies already have you covered, but here are a few things to keep in mind:

Ensure your harassment policy and harassment complaint procedure are visibly posted and that employees have been trained on both. Take this opportunity to remind employees of any guidelines that prohibit bringing campaign materials into the workplace.
While employers can implement dress code policies that prohibit the display of political items at work, the National Labor Relations Act says that employees have the right to display Union insignia while at work. So, for example, if what Donald Trump said is true, and “the men and women of the Teamsters are with Trump,” that “Teamsters for Trump” lapel button is allowable in the workplace regardless of dress code.
Remind managers and supervisors to avoid political discussions with their subordinates and to limit discussions that harm productivity or otherwise disrupt work.
Review your electronic communications and computer use policies to ensure that they mention that company computers and systems are for business related use only and that the use of systems for political campaigning is prohibited.
Review your non-solicitation policy to ensure that it prohibits all forms of solicitation, including political campaigning, during work hours.

November will be here before we know it, and the results of the election may bring about even more heated, political debate. Perhaps the most important thing we can all do is create a culture of open dialogue and respect for differing opinions. If that fails, perhaps we teach our employees the art of knowing when to walk away!

[1] http://www.prnewswire.com/news-releases/political-talk-heats-up-the-workplace-according-to-new-careerbuilder-survey-300298209.html

[2] http://www.acc.com/legalresources/publications/topten/TopTenQuestionsRegardingPoliticalDialogueintheWorkplace.cfm

[3] http://www.hrexaminer.com/is-there-free-speech-at-work/

Classifying Restaurant Staff

July 8, 2016

FLSA_logo Restaurant operators already have a dizzying amount to manage without getting bogged down by payroll or wage and hour issues. The Fair Labor Standards Act (FLSA) provides state-specific guidelines for things like minimum wage and employee classification that can make even a seasoned HR professional’s head spin. However, considering that failure to comply can result in substantial fines and penalties (and let’s not forget legal fees!), this is one area you can’t afford to neglect.

According to the Restaurant HR Group, one of the most common wage and hour mistakes in the restaurant industry is misclassification of employees. When you hire or contract with a new worker the FLSA requires that the worker be classified as an employee or independent contractor. The mistake most often made is to classify an employee as a contractor when they are not.

The classification process can be confusing and requires employers to determine whether or not an “employer – employee” relationship exists. But how do you know? Thankfully the IRS provides factors to consider when making this determination based on the ideas of control and independence in the relationship.

According to the IRS, factors that provide evidence of the degree of control and independence fall into three categories:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (These may include things like how the worker is paid, whether expenses are reimbursed, who provides tools/supplies).
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?[1]

While there may be some indicators that lean toward an employee determination, and others that lean toward a contractor determination, the entire relationship must be considered. One final and often overlooked step in this process is making sure that you document how you arrived at the conclusion.

Another common wage and hour mistake in the restaurant industry happens when classifying employees as either exempt or non-exempt. With new overtime laws effective December 2016, it is important to review current employee classifications to prepare.

According to Eater.com, the average U.S. wage for chefs, head cooks, and pastry chefs is $45,920. For bakers, that number is $26,270. Based on the new Overtime Law, these workers, often salaried and working 50 or more hours per week, will qualify for time-and-a-half pay for their extra hours if employers do not consider options such as adjusting wages or cutting hours.[2]

Based on the new law and the national increase in employee lawsuits related to exempt status, now is the perfect time to review employee classifications. Need some help? Don’t hesitate to reach out- we’re here for you.

[1] https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

[2] http://www.eater.com/2016/5/18/11696664/obama-overtime-labor-laws

Overhauling the “Zero Tolerance for Violence” Policy

June 21, 2016

Most HR Professionals would prefer to stay out of the gun control debate. In light of recent gun related violence in the US, however, we once again find ourselves “caught in a legal crossfire between the need to maintain safe workplaces and the right of employees to possess firearms.[1]”

Until recently, many employers attempted to prevent violence in the workplace with Zero-Tolerance policies, but policy alone will not prevent violence, nor will it help in a time of crisis.

Although the gun control debate has taken center stage, gun violence is only one type of violence we may encounter. Here are a few recommendations for preventing and preparing to respond to violence in the workplace.

1. Train your managers and staff to identify the behaviors that may be predictors of potential violence and encourage employees to report conduct that makes them feel uncomfortable. Investigate all complaints and act if needed. Include the reporting structure in policy, and be sure to make employees aware that there will not be retaliation for following the policy.

2. Provide training for employees that goes beyond a zero-tolerance policy. In today’s climate, this means providing training and conducting drills on what to do in an active shooter situation. This may require consulting with your local law enforcement agency, especially if no one on your team is an expert in active shooter preparation. Many agencies will provide active shooter training free of charge.

3. Form a management response team to conduct a threat assessment as well as respond to threats or reports of potential violence.[2] The members of this team may need specialized response training as well. Hire an external party to conduct a threat assessment if your organization is not comfortable conducting it internally.

4. Ensure that your management team understands your state’s laws regarding guns in the workplace. Legal experts say employers have a right to prohibit guns and other dangerous weapons on private property.[3] However, many states have laws allowing employees to have weapons locked in a personal vehicle in the company parking lot. If you are going to implement a no-guns-at-work policy, be sure to post a conspicuous sign prohibiting weapons at work.

5. Consider adopting background check requirements for all new hires. A thorough check may weed out someone with a history of violence or behaviors often associated with a heightened potential for violence.[4]

No employer is immune from workplace violence and no employer can totally prevent it.[5] Taking measures to prevent violence is not enough. We must also prepare to respond and act when faced with a violent situation.

Sources:

[1] https://www.shrm.org/hrdisciplines/safetysecurity/articles/pages/hr-conflict-guns-workplace.aspx#sthash.ZakEiJFJ.dpuf
[2] https://www.shrm.org/legalissues/federalresources/pages/3-ways-to-reduce-risk-of-workplace-violence.aspx
[3] https://www.shrm.org/hrdisciplines/safetysecurity/articles/pages/hr-conflict-guns-workplace.aspx#sthash.f2sh1QW0.dpuf
[4] http://topics.hrhero.com/workplace-violence/
[5] https://www.dol.gov/oasam/hrc/policies/dol-workplace-violence-program.htm

HR Trumps political speech at work

June 16, 2016

You overhear them in the dining rooms, kitchens, and break rooms around this time every four years or so- sometimes more often in off-cycle election years. Political chit chatter between your employees. Sometimes, they even get heated and you begin to hear voices being raised. You might even notice employees avoiding others at the office who have expressed different political views as their own to “avoid trouble”.
From a Human Resources Management perspective, it’s important that you understand how to react. Political discussions at work can impact morale, teamwork, communications, and may even open up your company to liability if arguments get out of hand. My advice to you-

Don’t allow employees to play the “free speech” card at the office when you have a trump card in the law.

candidates That’s right, I said it. Your employees’ free speech protections when it comes to these conversations ends at your company’s door step. The First Amendment of the constitution only guards against censorship by the Government. There is no Federal law protecting the expression of political views at private employers.

I stress private employers because while private employers can fire an employee whose speech they dislike- the First Amendment governs the circumstances under which public employers may discipline employees for their speech. The Supreme Court has also ruled that public employee speech involving matters of “public concern” constitutes protected speech under the First Amendment. Needless to say, there are many an argument that can be made for what vaguely constitutes public concern.

What Must You Know

From a political standpoint, here’s what you should know if you are a private employer conducting business in South Florida. In Florida, it’s a felony to “discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.” Don’t ever fire or threaten to fire an employee for exercising their right to vote or to abstain from doing so.

Additionally, Political affiliation, sexual orientation, gender identity or expression and age under 40 are prohibited under the Broward County Human Rights Ordinance. Yes, it is illegal to discriminate against someone when making a hiring decision in Broward county because of their political affiliation- don’t do it.

While you can limit political speech at the office as a private employer, do remember that the National Labor Relations Act states that “private employers cannot prohibit discussions about workplace conditions.” Translation, there are limits to your powers of silencing political speech at the office. Say for example, two or more of your employees are debating in the lunch room which political candidate or party would benefit them most as workers- they have a right to that conversation. In the event of a claim in this instance, they would argue it was concerted activity about workplace conditions- and more likely than not you would lose that case.

Got a question about the political chatter at your office during this election season? Don’t tackle it alone, reach out and let us help.

5 Ws That Are Key to Employee Investigations

May 23, 2016

While working at your office one day an employee quietly enters and closes the door behind him. He asks for a few minutes of your time, and detecting the urgency in his voice you grant him the time- he proceeds to tell you a harrowing tale of harassment and bullying allegedly going on right beneath your nose. Right now, he just wants you to do something about it. Time for you as a Manager to jump into action and immediately contact your HR Business Partner.

I cannot stress the importance of conducting a quick, thorough, and documented investigation into any and all claims of harassment by an employee. While HR professionals are trained to perform these investigations, Managers should at the very least be knowledgeable on the 5 Ws that will determine the success of said effort.

The 5 Ws refer to the questions that must be asked during any investigation-

Who – was there, who made the offending comment, who witnessed the comment being made, etc.
What – preceded the comment, what was said exactly, what do you think the offending party was trying to convey with the comment, what was hurtful about the comment, what did you do about being hurt at the time, what in your opinion would be the ideal resolution to this situation, etc.
When – was the comment made, when did you decide to complain, when did you tell the offending party that their comment was hurtful, etc.
Where – did the incident happen, where did you go afterwards, where did they go afterwards, etc.
Why – didn’t you tell them you were hurt by their behavior, why did you not say something sooner, why did you …, etc.

Your employee investigations should be executed quickly, your interviews well-planned and remember the 5 Ws. Your employees must perceive you as unbiased and objective in the performance of reviewing these claims- or you will not get the information or cooperation you need from them in order to get to the bottom of the situation. It almost goes without saying, but document every step along the way of your investigations and it helps if you always assume that the matter will end up in court.

The new overtime rules are here!

May 18, 2016

Key Provisions of the Final Rule

The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:

Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);
Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and
Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

The effective date of the final rule is December 1, 2016.

The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) will be effective on that date. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

Complying with the new Overtime Rules

Wondering how these new rules impact your labor force, and what you can do to ensure you remain in compliance? We can help! Complete the form to your right or call and ask for help- one of our HR Consultants will be glad to sit with you and analyze the impact to your impact and recommend solutions for your particular situation. There is no one-size-fits-all solution to complying with this rule, as what is best for every business can vary depending on many factors.

Source:

Final Rule: Overtime

Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the Fair Labor Standards Act

Beware the rule-following co-worker, Harvard study warns – The Washington Post

April 27, 2016

Harvard study on toxic employees lays out three characteristics that should make you suspicious.

Every workplace has them. The colleague who bad-mouths you behind your back at the water cooler. The boss who takes credit for everyone else’s ideas. The sexist jerk people actively avoid by taking circuitous routes to the printer and lying about their happy hour plans.

These employees are the bane of American enterprise and they’re everywhere. Not only are they detrimental to a company’s morale, they are extremely costly to its bottom line and can do far more harm to an organization than outliers at the other extreme — the superstar employees — do good. But who are these people exactly? And how are they different from the rest of us?

Source: Beware the rule-following co-worker, Harvard study warns – The Washington Post

Uber will pay up to $100 million to settle labor suits

April 22, 2016

Uber has agreed to pay millions of dollars to settle two class-action lawsuits that would have defined the relationship between the company and its drivers.

Uber has survived a major threat to its business model, settling two legal suits brought by drivers who sought to be classified as employees instead of independent contractors.
The ride-hailing firm will pay up to $100 million to the 385,000 drivers, but their employment status will not change.

The class actions were brought in California and Massachusetts. Uber, which is valued at up to $70 billion, is on the hook for a $84 million initial payment, and another $16 million if it goes public.

Source: Uber will pay up to $100 million to settle labor suits

Are you Paying Too Much – Or Too Little?

March 7, 2016

Choosing how much to pay your employees can be difficult. Are you paying too much? Too little? How much is enough to keep your best and brightest employed within your organization? Being fair to all employees while also showing that they’re valued takes more than a standard pay scale. While the ability to hire a great candidate is often reliant on salary, retaining a great employee may require a little more than just dollars and cents.

Fairness in compensation within your organization, otherwise known as internal equity, is somewhat of a preoccupation in today’s workplace. Our employees can’t help comparing what they’re making to what their peers are making, both inside the organization and out. While we try to keep salary information confidential, the information is easily obtained, sometimes by word of mouth and by information found online. Creating internal equity can help create and maintain the loyalty of your employees.

Looking at the balance between internal and external salary equity is a great place to start. However, no matter how complex and complete your compensation formulas are in reality (assuming all related laws are considered), it is how they are perceived that can truly impact employee loyalty and happiness. If employees perceive that they are not being paid fairly in comparison to their coworkers, they may not feel valued and may leave. If the employee perceives that they do more work than their peers but are paid the same, this may create a similar outcome.

Wages should not be based on job title alone. The tasks completed are more important than the titles. Similar tasks should earn similar wages. Of course, beyond job tasks it is certainly acceptable to consider an employee’s education and prior experience.

More and more employers are creating compensation plans built on the idea of transparency, which helps them to explain why compensation decisions were made. Explaining the factors that led to a compensation decision will allow employees to understand your exact reasoning, which can result in the perception of being paid fairly. The employee’s perception of being paid a fair wage is just as important as the wage itself.

If you haven’t reviewed your pay or internal equity structure recently, now is the time. Your best employees are probably already aware of how much their peers are making and how much they could be making elsewhere.

Is love in the air at your office?

February 15, 2016

It’s Valentine’s Day, let’s recognize that love is not just in the air this time of year – it may also be in your office. Workplace romances are more common than you might think. Last year’s Vault Survey of Office Romances found that 51% of respondents had been involved in an office romance. The scary part is that 32% of those folks had a relationship with a superior or subordinate.

Before you change the annual Sexual Harassment Prevention training to the week of Valentine’s Day each year, let’s consider a more realistic option: A policy on workplace romance. This type of policy is an addition to your policy on harassment, not a replacement.

According to SHRM, when developing a policy on office romance, employers should consider both the legal implications associated with sexual harassment and retaliation claims under Title VII of the Civil Acts of 1964 and similar state and local laws, as well as the day to day events associated with consensual relationships in the workplace. A good policy starts with prohibiting romantic or sexual relationships between supervisors and direct subordinates. Preventing all office relationships seems improbable, but you can clearly identify workplace expectations.

Already have an office romance policy? If it hasn’t been revised in a while, now might be a good time to align it with your technology policy. If there is an office romance, it is likely to play out through an internal messaging system, e-mail, texting or social media. While your technology policy may already address the use of these in the workplace, your office romance policy can serve as a reminder of the policy and should serve to further minimize any expectations of employee privacy.

If you have an older “love contract” and not a formal policy, it’s time to rethink your approach. Love contracts were designed to allow employees to disclose their relationship and provide protection to the employer in the event that the relationship ended. While they may still have a place in your organization, a love contract alone will not shield you from liability.

As you rethink your current policy, or think about developing a new one, always remember to keep the culture of your organization in mind. While you have to abide by related laws, you should carefully consider what will fit your organization best.

A policy, a love contract and employee training might not sound romantic, but it’s a great Valentine’s Day gift for your business!

Store or Delete? How Long Should We Keep HR Records?

December 7, 2015

As the beginning of a new year approaches, many of us will try to organize our offices, de-clutter both our physical desktop and our virtual one, and simply get rid of the unnecessary. One thing that Human Resources is known for is lots and lots of paperwork. While a large part of it is stored electronically these days, it’s still there, taking up space. Hey, record keeping is part of our job – we need to keep those records! That’s true. But are we keeping them longer than necessary?

Before we talk about how long to hold onto certain items, a quick reminder of the types of information that should be in an employee’s personnel file: Only information that can be legally used as a basis for an employment-related decision should be in an employee’s file. That means that information related to EEO, disability records and wage garnishments – all things that we cannot base employment decisions on – should be in separate files. A good practice is to keep I-9s in a separate file as well.

The list below outlines a few of the federal guidelines, although it is important to note that if state guidelines are different, you should pick the one with the longer time frame. Better to keep it longer than necessary than not long enough. Of course, some industries or circumstances come with their very own sets of requirements (such as Federal Contractors) and those do not follow the guidelines offered below.

Hiring Records – 1 Year. Yes, you will need to save all of the cover letters, resumes, interview notes, etc. from the hiring process for one year after the hiring decision is made. Among other things, this serves as a means to protect businesses from claims of discrimination.
Basic Employee Documentation such as I-9s or work permits for minors – 3 years after hire or 1 year after termination, whichever is longer.
Drug Testing – 1 Year (longer for transportation related jobs). If you require drug testing as part of the pre-employment process, then it is considered part of the hiring process (See first bullet). If you do additional drug testing after employment has commenced, you will need to maintain these records for one year as well.
Payroll Records – 3 Years Minimum. Payroll records include daily schedules, regular rate of pay (and basis for determining it), overtime pay, weekly compensation, amounts and dates of payments, daily and weekly hours, overtime hours and pay, annuity and pension payments, benefits, deductions and additions and more. Please note that 3 years is the minimum time to hold on to these records. In our highly litigious workplace, the best practice is hold on to them for at least five years after termination!

There are many more types of records that we hold on to, and each has guidelines regarding how long you need to retain them.

Attendance at the Holiday Party is Optional…. But We EXPECT you to be there!

November 22, 2015

Are you ready for the annual holiday party? In today’s multicultural, highly litigious workplace, some employers have chosen not to celebrate the holidays at the office at all. Trying to figure out how to celebrate Christmas, Hanukkah, Kwanzaa, Ramadan, and Bodhi Day in one event is reason enough to consider pulling the plug on holiday celebrations altogether. Still, it’s hard to break a habit and many businesses still revere the party as a time honored tradition to be upheld. Not all employees, however, may be eager to attend.

Holiday_Party While employers don’t normally require their employees to attend a holiday party, many strongly encourage it, creating an expectation of attendance. If you’re one of those organizations, we suggest you reconsider the message on your holiday party invitation for two reasons. The first is related to liability and the second is related to wage and hour laws.

As an employer, your liability for something that happens at a holiday party is going to depend primarily on whether the party can be considered within the course and scope of employment. If employees are required or expected to attend, then it’s a safe bet that the party is within the course and scope of employment. If an employee is injured at your party it could be compensable under your workers’ compensation policy. If an employee hurts someone who is not an employee, you could be legally responsible for their negligence.

If there is no expectation of party attendance, then the party may not be in the course and scope of employment, which may relieve you of some of these liabilities as an employer (Of course, an employer can always be held liable for harm resulting from negligence).

No one expects to pay employees an hourly rate for attending a party, but if non-exempt employees are required or expected to attend then, by law, you should pay them for the hours they attended the party. If those party hours, on top of their normal work hours, put their weekly hours over 40, you could find yourself paying overtime for party attendance.

If there is no expectation of party attendance then you shouldn’t have to pay for the party time unless the employee performed actual work. Two months ago we posted about meal breaks, and the same concepts apply here. If you have your staff working at the party to register party-goers, hand out name tags or table numbers, decorate or perform any other duties that you assign to them then, legally, they should be paid for their time.

So make your holiday party optional…the fun people will attend regardless and you will have two fewer headaches to worry about!

Merry Christmas everyone.

Avoiding a Halloween Scare

October 21, 2015

It’s that time of the year again- Halloween, also known as “All Hallows’ Evening”. Many a CEO or business owner is tempted to let employees “dress up” for the day, humanize the workplace a little bit. Allow their teams to display some personality, and bring some pizazz to the office. Overall, this is not a bad time of the year to allow a little fun.

Don’t let the fun turn into a nightmare scenario for you. When adults come out and play, Halloween costumes can get overly sexy (I know, I know- you’ve never seen this happen), or mock racial, religious, or political beliefs that may offend another employee. Before you know it, you’re getting served with a workplace discrimination lawsuit. How can you avoid this spooky situation, and still allow for a little fun at the office?

As with most things Human Resources related, an ounce of prevention is worth a pound of cure. While you cannot completely eliminate the risk that an employee will get offended, you can certainly mitigate that risk by following a few easy steps.

First things first. If you’re going to allow for a little fun in the workplace this Halloween, communication with your Managers is key. Meet with your Management staff and Elvira discuss the holiday, and how some in the workplace might find the holiday objectionable due to their religious beliefs. For this reason, Managers should communicate to their teams that it is perfectly okay NOT to participate in dressing up to work on that day, and if an employee requests to work from home and it won’t impact their work- this reasonable accommodation should be made. Any costume contests, office décor contests, parties, or activities related to the holiday should be communicated to staff as “voluntary” and no employee should be forced to partake.

Next, you should communicate that Halloween is not a day (or an excuse) to toss the company dress code out the window. While it is okay for them to dress up, it should be communicated to all staff that the main parts of your company’s dress code will still be enforced. You want to get the message across to your staff that costumes that may offend a colleague, or worse- a client, will not be tolerated. Period. If possible, give examples of costumes that comply with your dress code, and those that don’t. I suspect this being a Presidential election cycle and with the new Star Wars movie set to be released in December, you’re going to be seeing a lot of Donald Trump and Hans Solo costumes.

Lastly, I can guarantee you that even though you take the two necessary precautions above- someone will still end up coming to work in an inappropriate costume. Consider when communicating the Halloween holiday’s work rules for the day asking those employees who will be coming in costume to bring a change of clothing in the event their chosen attire is deemed inappropriate. Also inform them that not doing so may result in their being sent home for the day should their costume not meet the company’s communicated guidelines.

I know what you’re thinking, all this for a day of fun? Yes, and believe me- you’ll thank me if you still end of with the nightmarish scenario of having an employee file a claim.

A Working Lunch?

August 7, 2015

Taking breaks can be good for productivity, focus and even morale, but most employees are surprised to know that Federal law doesn’t give adult employees (18 and older) the right to take a break. Although many Florida employers do provide meal and rest breaks, they are not required to offer breaks at all.

working_lunch Of course, most employers recognize that an employee who is tired and hungry is neither productive nor a joy to be around, so breaks are offered through company policy. Even though the breaks themselves are not mandated, employers are required to pay for an employee’s time during short breaks. Breaks of 20 minutes or less require that an employee be paid.

Many employers do not pay employees for meal breaks, which are most often greater than 20 minutes and therefore do not require payment. However, Federal law requires that if an employee works through their meal they must be paid. For example, if your front desk staff are covering the phones while eating lunch at their desk, they must be paid. If your service representative is eating in the car while driving from one customer to another, this too must be paid. Even though this time may be referred to as a “lunch break,” if the employee is still working then they are entitled to be paid. Meal breaks are only unpaid when an employee is relieved of all job duties.

To avoid misunderstandings or abuse of paid breaks it is important to clearly communicate your break policy guidelines. For example, you will need to specifically talk about the frequency and length of allowed breaks. You may also want to define break limits so that those who smoke are not taking frequent (paid) breaks while non-smoking employees are not.

More information about Federal requirements for breaks and meal periods can be found here.

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