Labor relations Archives - Miami Payroll Center

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.

What your Managers need to hear about COVID-19

March 16, 2020

1. Do not ask your employees if they have COVID-19.

While you can visually see an employee coughing, sneezing, and generally feeling sick at the office and you are right to ask an employee to go home under these circumstances- remind your management team that they cannot ask an employee if they have a specific illness. The Americans with Disabilities Act (ADA) restricts the level of questions that an employer can make into an employee’s medical conditions, and you do not want to run afoul of the ADA. You can however ask the following general health questions of an employee- (1) Are you feeling alright?, (2) Are you okay to continue to work?, or (3) Would you like to go home and get some rest?

2. Can I ask an employee to get tested for COVID-19?

No, the ADA prevents an employer from requiring an employee get a medical exam unless (1) the employer can demonstrate the medical exam is job-related, or (2) the employer has a reasonable belief the employee poses a direct threat to the health & safety of the employee or others THAT CANNOT BE ELIMINATED OR REDUCED BY REASONABLE ACCOMMODATION (reasonable accommodation in this case being sending the employee home and preventing their coming in contact with other employees).

3. You cannot take an employee’s temperature to determine if they may be infected with COVID-19.

Again the ADA comes into play, as taking an employee’s temperature or performing any other diagnostic falls under the category of a “medical examination” under the act. Its best to leave the medical exams to the doctors and other healthcare practitioners.

4. Do I have to allow an employee to wear a face mask to work?

No. The Centers for Disease Control and Prevention (CDC) advises against wearing a face mask unless an individual is sick with symptoms of the virus or is taking care of someone with the virus at home or in a health care setting.

5. One of your employees tested positive for the COVID-19, now what?

In the case you have an employee inform you that they have tested positive for the virus, it is important to send the employee AND ANY OTHER EMPLOYEES WHO THEY WORKED CLOSELY WITH home for a 14-day self-quarantine period to try and prevent further spread of the virus. Remember again that the employee’s medical diagnosis is protected health information, and that you as an employer cannot disclose their positive test results to the rest of your staff. You cannot disclose the name of the employee to anyone else at your company or you risk running afoul of confidentiality laws. Employers should inform their employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

It is very important if the employee who tested positive for the virus was physically at your work site, that you take deep cleaning measures to eliminate the potential threat from all surfaces that the employee was in close contact to. If you work in a shared office space arrangement, contact management of the space and ask them if they can deep clean any shared spaces that the individual might have been in contact with.

After taking the measures above, it is imperative that you report the positive test to your local OSHA office which is attempting to track all of the COVID-19 cases. For example, positive test cases in South Florida should be reported to the Region 4 Offices of OSHA in Atlanta, GA-

Region 4
Atlanta Regional Office
(AL, FL, GA, KY*, MS, NC*, SC*, TN*)
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW, Room 6T50
Atlanta, GA 30303
(678) 237-0400 (678) 237-0447 Fax

If you are in another region of the country, you can find your OSHA region and contact information in the OSHA “Guidance on Preparing Workplaces for COVID-19” job aid.

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

Handling An Employee Complaint

August 1, 2017

When an employee approaches a manager or business owner with a complaint, there is a right way and a wrong way to address their concern. After receiving an employee complaint, it’s always best to respond quickly and appropriately, even if you don’t have an actual solution to the problem right away.

Follow these basic steps to investigate an employee complaint and find a solution that works for all parties involved.

Investigate the complaint promptly. Determine who should conduct the investigation. The person should be objective and without bias in the outcome. Sometimes, a third party is the best option. (The Miami Payroll Center’s HR team is always available to help conduct investigations.)

Get the details. Listen and take detailed notes. Ask the complainant specific, objective questions such as:

When and where did the incident occur?
Are there any witnesses?
Is there any evidence of the situation?

If the complainant’s issue is with a manager or employee, interview that person as well and ask for the same details. Determine each person’s credibility and supporting evidence for conflicting statements.

Keep it confidential. When dealing with an employee issue, it’s best to limit discussion of the matter, until all relevant information is gathered and a solution can be put in place. Ask anyone involved to keep any discussions confidential as well. This can also help prevent office gossip and miscommunication.

Resolve the complaint. Determine if any laws were broken, company policies violated and if any disciplinary action is needed. Make the necessary corrections or adjustments. Communicate steps taken to the parties involved. Maintain records of the investigation and steps taken to remedy the situation. Address the matter with other employees and managers only when it’s absolutely necessary to prevent the matter from recurring.

Finally and most importantly, follow up. Check in with the complainant and other parties involved every so often until you are certain the matter has been resolved and no longer poses a disruption to your workplace.

Trouble recruiting good employees? Pay up!

July 25, 2017

One of the biggest challenges employers face is recruiting good employees to round out their teams. In South Florida where we operate, the marketplace for talent is beyond cut throat competitive. There are reasons for this of course, we have a large immigrant population where there is always someone willing to “work for less”. We also have a large percentage of jobs in the low-paying tourist and service industries. Couple these factors with a Republican dominated Legislature which works mostly for the state’s business community and you get a market with an overabundance of low-paying jobs and a healthy supply of labor to sustain it.

The U.S. Bureau of Labor Statistics Occupational Employment data, for the year 2015 show the Orlando-Kissimmee-Sanford metropolitan area had the lowest median pay among the country’s 50 largest employment centers, according to an analysis by FloridaPolitics.com. Miami’s pay rates take the second-lowest spot.

According to the BLS, the average median pay, annualized [meaning workers are assumed to be working full time, all year, at the rates of pay reported to the feds] for all occupations was $31,990 in Miami. Sometimes, in order for you to acquire the best talent available and take your company to the next level- you simply have to pay up for it. And yes, if you pay more than your competitors or above market average for some key positions in your company you will get better results.

Companies hiring H-1B workers under additional scrutiny

April 4, 2017

U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse.

Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

Cases where USCIS cannot validate the employer’s basic business information through commercially available data;

H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.

Existing H-1B Fraud Measures

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. USCIS refers many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

Further information

For more information about the new H-1B visa fraud and abuse detection initiative, visit the Combating Fraud and Abuse in the H-1B Visa Program web page.

For information about H-1B petition requirements, visit the USCIS H-1B webpage.

Office Romances & 4 Ways to Manage Them

February 14, 2017

With so much of our time spent at the office, office romances and relationships between coworkers have become a common occurrence. According to the most recent American Time Use Survey, Americans between the ages of 25 and 54 with children in their household spent an average of 8.8 hours on working and related activities each weekday.

Specifically, the hospitality and tourism industry ranked highest among industries where office romances are most common, with 61% of employees saying they’ve had some kind of workplace relationship.

Singles aren’t the only employees taking part in workplace relationships. According to the Society for Human Resource Management (SHRM), one in six office romances takes part with one or both of the parties having a spouse or significant other.

Here are some helpful tips to manage office romances at your company:

1. Address the issue: Rather than letting situations work themselves out. Take a stance on the subject. Some companies choose to ban office relationships, while others set boundaries for them. Whatever’s best for your company, be proactive and address the matter.

2. Establish a company policy on office relationships: The policy should address employee dating and consensual relationships occurring between co-workers and among co-workers and managers, supervisors and others in positions of corporate authority over terms and conditions of employment. It should also include examples of conduct that would be considered in violation of the policy and its consequences.

3. Implement Consensual Relationship Contracts: These contracts are rather common and help companies add an extra layer of protection to their operations. They also help managers discuss office romances in a positive, open manner. When drafting your consensual relationship contract, make sure to include these points:

the relationship is mutual and consensual
the relationship was never a condition of the terms of employment
it is the responsibility of each party to ensure the relationship does not impact job performance
company policies specific to office relationships (e.g., a prohibition on working in the same unit and next steps if required)
company expectations should the relationship end

4. Draft, publish and distribute a zero-tolerance policy for sexual or any other kind of harassment in the workplace, including threats or intimidation. Remember, in some instances, the liability for charges of sexual harassment or a hostile work environment could land on the employer…so it’s your responsibility to avoid these situations at your workplace.

Equal Pay Debate Will Fall to Next President

September 13, 2016

With the passing of longtime anti-feminist Phyllis Schlafly, famous for her long and prominent history opposing women’s rights and equal pay, perhaps now is the perfect time to consider the impact the election could have on equal pay, especially since this election could potentially result in the first female president of the US.

According to 2014 Census data, the most recent available, women earn an average of 79 cents for every dollar a man makes. This disparity is even greater for African American women (60 cents per dollar) and Latinas (54 cents per dollar). While the Obama administration has attempted to push forward legislation to address pay inequality, this issue will most likely fall to our next president.

Traditional political party roles on the idea of equal pay for equal work were *almost* shattered this election season when Ivanka Trump announced that her father Donald Trump, current Republican nominee, “will fight for equal pay for equal work.” While Trump has said that “women who work as hard as men [should] make the same if [they] do as good a job,” this statement does not mean that Trump plans to fight for gender based equal pay. In fact, Trump stands firmly with Republican party leaders, many of whom are dedicated to defeating potential gender equity pay laws.

Working to ensure that employers provide equal pay for equal work has traditionally been a priority for the Democratic Party. Republicans have historically opposed any laws that would infringe on an employer’s ability to reward its workers on the basis of merit with minimal government interference. Those positions have held true so far in the 2016 presidential election season.[1]

Senate to take up and pass the Paycheck Fairness Act, legislation which will help close the wage gap between women and men working equivalent jobs, costing women and their families $434,000 over their careers

Hillary Clinton, who sponsored the Paycheck Fairness Act during her time as a Senator, is still pushing to pass the act, which goes beyond equal pay to cover paid family leave and minimum wage increases among other things. While the Paycheck Fairness Act sounds like a simple and fair fix, opponents say that it could create excessive legislation that would create a burden for small businesses.

Earlier this year the Obama administration proposed executive action through the EEOC to require employers with 100+ workers to provide detailed information about employee earnings. Under the proposed law, employers would need to break down pay information by gender, race and ethnicity so that pay gaps are easily identified. [2] For more than 50 years, employers have reported workforce data by race, ethnicity, sex and job category. This proposal would add summary data reported by pay ranges and hours worked. Under the most recent proposal, the report on 2017 employment information would be due by March 31, 2018.[3]

While no one knows what this requirement might look like after the election, or if it will even exist, legal experts recommend reviewing current pay structures to identify and then address or justify areas of pay disparity.

[1] https://www.shrm.org/hr-today/news/hr-news/pages/clinton-vs-trump-equal-pay-for-equal-work.aspx

[2] https://www.fisherphillips.com/resources-alerts-updated-equal-pay-data-rule-fails-to-address-employer-concerns

[3] https://www.eeoc.gov/eeoc/newsroom/release/7-13-16.cfm

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/

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

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 Highest-Paying Companies In America

April 27, 2016

Research conducted by online employment website Glassdoor has found that consulting and technology companies offer their employees some of the highest salaries in America. Chicago-based consulting firm A.T. Kearney was ranked first overall for pay with median total compensation amounting to $167,534. Strategy& came second with $160,000 while Juniper Networks rounded off the top three with $157,000.

You will find more statistics at Statista

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

The Never Ending Discussion of Wages

March 8, 2016

It’s almost impossible to watch the news or follow social media without hearing at least one side of the debate for raising wages. Last year The Wall Street Journal and Vistage International conducted a survey of 728 small business owners across the U.S., from a range of industries, and found that small business owners were evenly split in their opinion of raising the minimum wage, with about 49% of respondents saying the federal minimum wage should be raised, while 49% disagreed.

While reasonable arguments can be found on both sides of the fence, one thing that is certain is that businesses must revisit the issue of wages in their overall workforce strategy. In our last post, we mentioned that our employees can’t help comparing what they’re making to what their peers are making, both inside the organization and out. Last week, Costco announced that it will be raising wages for both new and current entry-level workers in the U.S. This means that Costco will be paying workers at least $13 an hour. Even those who don’t work in retail will be comparing their pay to that of Costco. Analysts suggest that, as the economy adds jobs, retailers will have to start paying their front-line employees more if they want to retain them.

Couple the Costco wage increase news with the increase Walmart announced a few months back, and it is easy to predict that the U.S. labor market might be tightening. February’s Department of Labor monthly report showed strong hiring in the U.S. economy as evidenced by the addition of 242,000 jobs and a steady unemployment rate of 4.9%. The U.S. economy has been adding jobs 72 months in a row. As the economy improves and job openings become more plentiful, it is safe to assume that workers will have more opportunities to jump from job to job in search of the best wages.

According to The Atlantic, many businesses are reporting that the competition for low-wage workers is growing and it’s harder to find employees to fill vacant positions. The Wall Street Journal reports that one third of small firms stated that they had lost workers due to higher wage offers by competitors or other businesses.

Of course, it’s not always feasible to adjust wage scales. If this is the case, then it’s time to revisit other ways to keep your employees motivated, productive and loyal. In terms of keeping your employees happy, money isn’t everything. But it helps.

Do you think wage increases outside of your industry will have any impact on your workforce? Weigh in by commenting below.

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.

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.

Is it time to retire the year end review?

November 17, 2015

For a large number of employees the annual performance review meeting is the most anxiety-ridden conversation of the year. Many meetings will start out with a few positives that are said early on to take away the sting from the negatives, which we’ve become accustomed to calling “areas for improvement” or some other euphemism for underperformance. Managers will then try to ensure that the meeting ends on a positive note of some sort, but this emotional swing from positive to negative to positive often leads to employees receiving a mixed message and ultimately ends in disappointment.

Annual performance review It’s time to reconsider the idea of an annual review that happens only at the end of the year. Performance management is a process. Chances are you’re already providing feedback of some sort throughout the year. Perhaps it’s time to replace your end of the year annual review process with one that has a beginning, middle and an end.

One model of performance management suggests holding Performance Planning sessions with each employee at the start of the year. Use that time to discuss the team member’s goals as well as your expectations. Not only will the employee have a clear understanding of your expectations, but they will also understand exactly what you plan to hold them accountable for at the end of the year.

After performance goals are set, provide constructive coaching on projects and performance throughout the year, keeping notes and asking the employee for a goal’s status report. Ask for their opinion on how they think things are going. These items will make writing the end of the year review much easier.

A few weeks prior to writing your end of the year review, ask the employee to judge their own performance against the goals set at the beginning of the year. Once your review is written, provide it to them just prior to your meeting so that their initial emotional reaction to the review can be experienced privately. If the employee participated in the performance planning process at the beginning of the year, the contents of their review should not be a surprise. For high and low performers alike, provide feedback in terms of what they are doing now that is not working, what they are doing that is working well and what they need to do to be more effective.

There are lots of performance review models that provide ideas on how to handle the end of the year meeting, from getting 360 degree feedback to using a rating scale to measure specific behaviors. The reality is that your performance management system should be unique to your organization and, most importantly, should fit the culture of your workplace.

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.

Are You a Joint Employer? Well…It’s Complicated!

September 8, 2015

nlrb In late August the National Labor Relations Board (NLRB) made a decision (Browning-Ferris Industries of California, Inc., et al. v. Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters) that might make you think twice about outsourcing your next project. Through this decision the NLRB pronounced a new legal standard to determine if a business is a joint employer of another’s employees. They’ve also created a fair amount of confusion and uncertainty in the process. Under this new standard, employers may now have obligations and liabilities under federal labor law in relation to the employees of a variety of other companies with which they do business – their contractors, suppliers and franchisees just to name a few.

The decision says that two or more companies are joint employers if they share the ability to govern terms and conditions of employment. If you set some of the terms or conditions of employment for temporary staff, your contractor’s staff or an employee of an outside agency, the NLRB might consider you to be a joint employer. That not only means that you could be held liable for labor violations but, since this decision makes it easier for labor unions to organize employees of staffing agencies and franchises, it also means that you could be forced into collective bargaining negotiations. Employers using staffing agencies are particularly at risk. If you have sufficient authority to control things like wages and working conditions, you may be considered a worker’s employer, even if another company also qualifies as an employer of that same worker.

Not convinced that this applies to you? Consider this: If you have the ability to reject temporary workers, establish qualifications or assign work shifts for temporary employees or the employees of a contractor, then it is very possible you could be considered a joint employer. If you require these workers to follow your company’s safety procedures and go through your company’s training, you could be considered a joint employer. If your supervisors provide oversight for these workers, you could be considered a joint employer.

For more than 30 years the NLRB considered a company a joint employer only if it had direct control over working conditions and chose to exercise that control. Now a company may be deemed a joint employer if it has indirect control or simply reserves the right to have such control. So even if a company has the right to control working conditions but chooses not to use it, they can still be liable for the negative impact of other joint employers of that worker.

Now is the time to consider your current employment practices in order to avoid unintentional joint employer status. While the NLRB’s decision provides little detail that will enable you to guarantee you are not a joint employer, you should review franchise agreements, staffing agency contracts, etc. in an effort to mitigate this risk.

It is important to note that the recent decision has no impact on laws over which the NLRB has no jurisdiction. For example, this does not change the definition of who is an employee for tax or benefits purposes.

Misclassifying employees: An expensive proposition

March 8, 2015

Many small businesses believe they are getting a bargain on expenses and payroll taxes by classifying their employees as independent contractors. Some employers classify independent contractors as such in order to avoid paying overtime. They arbitrarily bring them on-board and figure they can simply provide them a 1099 at the end of the year and be done with it, completely oblivious to the perils to their business down the line.

Classifying employees and determining who is and is not an independent contractor isn’t a choice you are free to make in order to suit your business goals independent of the rules involved. If a hire is misclassified, a company can face hefty financial penalties and even lawsuits.

A number of factors must be taken into consideration in determining whether an individual should be hired as an independent contractor or an employee. It is also important to remember that no single factor is conclusive on its own- it’s sometimes very difficult for the hiring organization to make the correct determination on their own.

FEMA_Employees To determine whether an individual is an employee or an independent contractor under common law, the relationship of the worker and the business must be examined carefully. Generally speaking, an employee is subject to an employer’s control over what work gets done, how it is performed, with what tools and resources, and when the work gets performed. If on the other hand an individual is an independent contractor, the employer has the right to control or direct only the result of the work- and not the means and methods of accomplishing the result.

At Miami Payroll Center, we want to help you ensure you have properly classified your employees and/ or independent contractors. To this end, we’ve created a simple two-page job aid which can help you make the determination. To get this free tool, simply click here and fill out the short form. You will receive an email with a link to download the free job aid.

For more information on the proper classification of your employees, contact us or visit the IRS’s web site here.

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