Archive for the ‘Compliance’ Category

Contacting an Employee’s Health Care Provider under FMLA

Tuesday, April 22nd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the Family and Medical Leave Act (FMLA), such as this one below:

Does the Family and Medical Leave Act (FMLA) allow an employer to contact an employee’s health care provider about his or her serious health condition?

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In today’s post, Advice and Resolution Team Member John Gupton offers guidance for this employer question:

If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

Under the regulations, however, when contacting an employee’s health care provider for authentication or clarification of the medical certification, an employer may use a health care provider, a human resource professional, a leave administrator or a management official. But, the FMLA regulations make clear that in no case may the employee’s direct supervisor contact the employee’s health care provider.

Also, the FMLA regulations state that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. In order for an employee’s HIPAA-covered health care provider to provide an employer with health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer.

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

For more information, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

 

9 Things You Should Know About Immigration Law and I-9′s

Tuesday, April 15th, 2014

I9 paperworkImmigration law can often be a tricky subject for employers to tackle. To ensure you’re keeping your organization compliant, here is some helpful information to remember:

1. Employers who have constructive knowledge that an employee is not authorized to work, but continue to allow the employee to work are subject to fines.

2. Although employers are not required to do I-9’s for contractors, they have a duty to ensure to the best of their ability that contractors are legally authorized to work in the United States.

3. Employers who hire out-of-state employees where there is no company representative to handle the I-9 process may contract with someone to complete I-9’s on their behalf, such as a notary public. (Note: Texas does not allow notaries to perform this service.)

4. Employers cannot require an employee to present documentation to support the Section 1 information. The employee attests by signature that this information is correct.

5. Employers or their agents are not required to notify the U.S. Immigration and Customs Enforcement (ICE) of illegal aliens discovered through the I-9 process, and it is not recommended that you do so.

6. The I-9 form cannot be completed until a job offer is made and accepted. Because the I-9 requires date of birth and identifies whether the person is a U.S. citizen or alien, it could be a source of potential discrimination charges if an applicant were required to complete it pre-offer and then not be hired.

7. The I-9 Form states that Section 1 should be completed and signed by the employee on the day employment begins. This is defined as the first day of work where the employee is providing labor or services in exchange for pay.

8. It is fraud if someone other than the employee fills in Section 1 but does not provide the required information and a signature in the Preparer and/or Translator Certification box, or if HR or a company representative fills in missing information in Section 1 for the employee.

9. ICE investigations are lead-driven. Leads that appear to have some merit must be further investigated to avoid constructive knowledge and to resolve the issue.

Ogletree Deakins’ attorney Bernhard Mueller will provide additional information and updates regarding immigration law at the 2014 Employment and Labor Law Update. The conference will take place at the McKimmon Center in Raleigh on May 14 and May 15. In addition to immigration law, presenters will cover wage and hour issues, NC legislature, ADA, minimizing lawsuits, protecting proprietary information, and more. Register today at www.capital.org/lawupdate.

Photo Source: dataflurry

When Must Employers Seek a Religious Accommodation Regarding a Personal Appearances Policy?

Thursday, April 10th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about religious accommodations for employees.

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs and is prohibited by the federal law known as Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC), which is a federal agency, is responsible for enforcing this law. The law protects not only people who belong to traditional organized religions, like Buddhism, Christianity, Hinduism, Islam and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

Also, as mentioned above, an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, workplace safety issues, like the prohibition of wearing loose garments around machinery, don’t need to be overlooked for the sake of accommodation.

When an employee or applicant needs a dress or grooming accommodation for religious reasons, it is the employee’s responsibility to notify the employer that he or she needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

The EEOC has issued guidance on religious discrimination issues in the workplace, which is located at http://1.usa.gov/rel-dis. In addition, the EEOC has a listing of best practices in the workplace regarding religious issues, which is located at http://1.usa.gov/bp-rel.

If you have questions about religious accommodations, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

 

Cash Shortage Deductions from Commission Payments

Thursday, April 3rd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. Many questions the Team receives deal with Wage & Hour issues and what is right under the Fair Labor Standards Act (FLSA) Here’s a recent question the team received:

George Ports, Senior Executive and HR Advisor

George Ports, Senior Executive and HR Advisor

Are Employers Allowed to Deduct Cash Shortages from a Salaried Exempt’s Commissions?

In today’s post, Advice and Resolution Team Member George Ports offers guidance for this employer question:

According to the US Department of Labor’s Wage & Hour Division, cash shortage deductions from commission payments made to salaried exempt employees would not affect their exempt status under section 13(a)(1) of the Fair Labor Standards Act (FLSA) as long as the affected employee meets both the duty and the guaranteed salary level tests required.

An employee will be considered to satisfy the salary level test if the employee is paid on a salary basis at a rate of not less than $455.00 per week. The salary basis test is met if the employee regularly receives each pay period “a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” An exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. [Note: There are limited exceptions regarding deductions from exempt pay. For more information, go to http://j.mp/ex-su.]

An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. Thus, for example, an exempt employee guaranteed at least $455 each week paid on a salary basis may also receive additional compensation of a one percent commission on sales.

An exempt employee may receive a percentage of the sales or profits of the employer if the employment arrangement includes a guarantee of at least $455 each week paid on a salary basis. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least $455 each week paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. Such additional compensation may be paid on any basis (e.g., flat sum, bonus payment, straight-time hourly amount, time and one-half or any other basis), and may include paid time off. In other words, additional compensation paid on any basis besides the guaranteed salary is not inconsistent with the salary basis of payment.

Wage and hour regulations require only that exempt employees be paid a guaranteed salary of at least $455 per week, and any additional compensation above this salary amount is generally something that may be agreed upon between the employer and the employee. The prohibition against improper deductions from the guaranteed salary does not extend to any such additional compensation provided to exempt employees.

Cash shortage deductions, therefore may be made from a salaried exempt employee’s commission payments without affecting the employee’s exempt status as long as the commission payments are bona fide and are not paid to facilitate otherwise prohibited deductions from the guaranteed salary.

If you have wage and hour regulation questions, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

12-Month Period Under FMLA

Tuesday, March 11th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Family and Medical Leave Act (FMLA).  

john g edit

John Gupton, General Counsel and HR Advisor

The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave in a defined 12-month period for specified family and medical reasons. Generally, employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave.

The employer may use any of the following methods to establish the 12-month period:

(1) The calendar year – 12-month period that runs from January 1 through December 31;
(2) Any fixed 12-months – 12-month period such as a fiscal year, or a year starting on an employee’s anniversary date;
(3) The 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or
(4) A “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Employers may select any one of the four methods to establish the 12-month period as long as the method is applied consistently and uniformly for all employees.

Before changing to a different method of calculating the 12-month period, an employer must first give all employees at least 60 days notice of the intended change and the transition must take place in such a way that the employees retain the full benefit of their leave entitlement under whichever method affords the greatest benefit to the employee.

If an employer fails to select one of the 12-month period methods discussed above, the employer must use the 12-month period method that is the most beneficial to the employee.

Lastly, under no circumstances may an employer change the 12-month period to avoid the requirements of the FMLA.

For more information on the FMLA, go to http://www.dol.gov/ whd/ fmla/ index.htm.

New Self-Identification Form for Disability Status Released by OFCCP

Tuesday, March 4th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On March 24, 2014, new regulations take effect regarding affirmative action requirements for federal contractors. One of the major changes is the requirement that federal contractors and subcontractors solicit disability status for employees and applicants. The Office of Federal Contract Compliance Programs (OFCCP) requires companies to use a specific and unaltered form, which was just approved and released. You can access the form at http://1.usa.gov/NQtyhn.

This voluntary self-identification form must be used by federal contractors to solicit disability status of applicants both pre-offer and post-offer. Solicitation of applicants using this form may be delayed until the contractors first AAP update after March 2014. This same form will be used to survey current employees at least every five years. Contractors must survey their current employees within the first year of the regulation changes (March 24, 2014 to March 24, 2015). For companies utilizing online applicant systems, the exact language of this form may be used online. If used electronically, it must include the OMB Control number, expiration date and use a sans serif font of at least 11 point.

If you have any questions about the affirmative action regulation changes or use of this form, please contact Kaleigh Ferraro at 919‑713‑5241 or kaleigh.ferraro@capital.org

Treasury Issues Final Regulations, Announces Another Delay of PPACA’s Employer Mandate

Tuesday, February 25th, 2014

The post below is a guest blog from Lindsey Surratt, JD who serves as Compliance Officer  for CAI’s employee benefits partner Hill, Chesson & Woody.

Now and Later ChoiceAfter more than a year of anticipation, on Monday, February 10, 2014, the US Treasury Department issued final regulations and announced yet another delay of the Patient Protection and Affordable Care Act’s Employer Shared Responsibility provision, which requires employers with more than 50 employees to offer health insurance coverage to full-time workers or pay a penalty.  Notably, the final regulations include welcome transition relief for employers with fewer than 100 full time equivalent employees and for employers with 100 or more full time equivalent employees.  Employers with fewer than 100 full time equivalent employees will not be required to offer health insurance coverage to full time employees until January 1, 2016.  Employers with 100 or more full time equivalent employees must offer coverage to at least 70% of their full-time employees in 2015.  This will increase to 95% in 2016. Other important changes and clarifications include the following:

  • COMMONLY OWNED ENTITIES: The final regulations have retained the rule applying the aggregation rules under the IRS Code to employers.  This means that all employees within a controlled group of corporations or affiliated service groups will be counted for determining the applicable large employer member’s size.  However, penalties will still be calculated on an entity-by-entity basis.
  • ROUNDING: When calculating full time equivalent employees, employers may round to the nearest one hundredth.
  • HOURS OF SERVICE: Equivalency methods for calculating an employee’s hours of service do not require that an employee must have actually worked one  hour during a day or week to be credited with 8 or 40 hours respectively for that period.  Employees must be credited with hours of service  for all paid hours.
  • VOLUNTEERS: Hours worked by  a “bona fide volunteer” are not treated as hours of  service.  A bona fide volunteer includes any volunteer who is an employee of a government entity or an organization described in section 501(c) that is exempt from taxation under section 501(a) whose only  compensation from that entity or organization is in the form of (i)   reimbursement for (or reasonable allowance for) reasonable expenses incurred in the performance of services by volunteers, or (ii) reasonable  benefits (including length of service awards), and nominal fees,   customarily paid by similar entities in connection with the performance of  services by volunteers.
  • STUDENT EMPLOYEES: Hours of service for section 4980H purposes do not  include hours of service performed by students in positions subsidized through the federal work study program or a substantially similar program of a State or political subdivision thereof. However, the final regulations do not include a general exception for student employees. All      hours of service for which student employee of an educational organization (or of an outside employer) is paid or entitled to payment in a capacity other than through the federal work study program (or a State or local government’s equivalent) are required to be counted as hours of service.
  • ADJUNCT FACULTY: Employers of adjunct faculty are required to use a  reasonable method for crediting hours of service.  However, the IRS and Treasury have proposed multiples that might be applied to credit  additional hours of service for each credit hour or hour of classroom time assigned to the adjunct faculty member.
  • DEFINITION OF FULL-TIME EMPLOYEE:  The hours of service threshold for  a full-time employee remains at an average of 30 hours of service per  week.
  • SEASONAL EMPLOYEES:  A seasonal employee means an employee in a position for which the customary annual employment is six months or less.
  • BREAKS IN SERVICE: The length of the break in service required before a  returning employee may be treated as a new employee is reduced from 26  weeks to 13 weeks (except for educational organization employers).
  • AFFORDABILITY SAFE HARBORS:  Employers are not permitted to use the prior year’s  Form W-2 to determine affordability under the Form W-2 safe harbor.  Additionally, no accommodation was provided for tipped employees under the Rate of Pay safe harbor.  The IRS and Treasury advise employers with tipped employees to use either the Form W-2 safe harbor or the Federal Poverty Line safe harbor.
  • PARTICIPATION:  In the large group market, a minimum participation requirement cannot be used to deny guaranteed issue.
  • STAFFING AGENCIES:  Health insurance coverage offered by a staffing agency to its employees (in the typical case in which the staffing agency or PEO is not the common law employer of the employee) may be treated as an offer  of coverage made on behalf of the client employer if the offer of coverage  meets certain requirements.
  • PENALTY CALCULATION: The following two questions in the IRS Q&A also make an important change to the way penalty amounts will be calculated for employers with 100 or more full time equivalent employees in 2015. Notice the (minus 80) and (minus up to 80) parentheticals in each answer below:

38.  For 2015, if an employer with at least 100 full-time employees (including full-time equivalents) that does not offer coverage or that offers coverage to fewer than 70% of its full-time employees (and their dependents) owes an Employer Shared Responsibility payment, how is the amount of the payment calculated? For any calendar month in 2015 or any calendar month in 2016 that falls within an employer’s non-calendar 2015 plan year, if an applicable large employer with at least 100 full-time employees (including full-time equivalents) does not offer coverage to at least 70% of its full-time employees (and their dependents), it owes an Employer Shared Responsibility payment equal to the number of full-time employees the employer employed for the month (minus 80) multiplied by 1/12 of $2,000, provided that at least one full-time employee receives a premium tax credit for that month.  See questions 24 and 25.

39.  For 2015, if an employer with at least 100 full-time employees (including full-time equivalents) offers coverage to at least 70% of its full-time employees, and, nevertheless, owes an Employer Shared Responsibility payment, how is the amount of the payment calculated? For an employer with at least 100 full-time employees (including full-time equivalents) that offers coverage to at least 70% of its full-time employees in 2015, but has one or more full-time employees who receive a premium tax credit, the payment is computed separately for each month. The amount of the payment for the month equals the number of full-time employees who receive a premium tax credit for that month multiplied by 1/12 of $3,000. The amount of the payment for any calendar month is capped at the number of the employer’s full-time employees for the month (minus up to 80) multiplied by 1/12 of $2,000. See questions 24 and 25.

The 227 pages of guidance issued contain many clarifications and additional rules – the bullets in this posting only provide highlights from the final regulations.  Please consult your legal counsel regarding the impact these rules might have on your organization.  You may find the Treasury Fact Sheet and the final regulations for further details.  Politico and the Washington Post were the first to report. Hill, Chesson & Woody will continue to report additional insight into the impact of these final regulations on our Healthcare Reform Digest.

Executive Exemption and its Supervision Requirements

Thursday, February 6th, 2014
Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the different exemptions under FLSA and how to ensure correct compliance, such as this one below:

If a supervisor supervises one employee and two independent contractors, would he or she be eligible for the executive exemption under FLSA?

In today’s post, Advice and Resolution Team Member Pat Rountree offers guidance for this employer issue:

The executive exemption has several tests that must be met:

  • The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
  • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

The requirement that the supervisor regularly direct the work of at least two full-time employees or their equivalent refers to employees of the employer under the FLSA. The US Department of Labor Wage and Hour handbook states that “only other employees of the employer may be considered when determining if the two full-time employee equivalency is met; supervision of volunteers, employees of independent contractors, or any other ‘non-employees’ (trainees, interns) in relation to the employer are not considered for purposes of this test.”

Also, to clarify, full time is generally considered to be 40 hours per week.

If the supervisor does not qualify for the executive exemption, you may want to consider whether he or she would meet the administrative exemption.

For more information on the executive, administrative, and other white-collar exemptions, see http://www.dol.gov/ elaws/ esa/ flsa/ overtime/ menu.htm.

How Does USERRA Interact with FMLA?

Thursday, January 30th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Uniformed Services Employment and Reemployment Rights Act (USERRA) and how it interacts with the Family Medical Leave Act (FMLA)  

john g editThe Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person’s past USERRA-covered service, current military obligations, or intent to join one of the uniformed services.

USERRA requires that service members who conclude their tours of duty and who are reemployed by their civilian employers receive all benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. If a service member had been continuously employed, one such benefit to which he or she might have been entitled is leave under the Family and Medical Leave Act (FMLA). The service member’s eligibility will depend upon whether the service member would have met the employee eligibility requirements outlined above had he or she not performed USERRA-covered service.

USERRA requires that a person reemployed under its provisions be given credit for any months of service he or she would have been employed but for the period of absence from work due to or necessitated by USERRA-covered service in determining eligibility for FMLA leave. A person reemployed following USERRA-covered service should be given credit for the period of absence from work due to or necessitated by USERRA-covered service toward the months-of-employment eligibility requirement. Each month served performing USERRA-covered service counts as a month actively employed by the employer. For example, someone who has been employed by an employer for nine months is ordered to active military service for nine months after which he or she is reemployed. Upon reemployment, the person must be considered to have been employed by the employer for more than the required 12 months (nine months actually employed plus nine months of USERRA-covered service) for purposes of FMLA eligibility. It should be noted that the 12 months of employment need not be consecutive to meet this FMLA requirement.

An employee returning from USERRA-covered service must be credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining FMLA eligibility. Accordingly, a person reemployed following USERRA-covered service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hour requirement. In order to determine the hours that would have been worked during the period of absence from work due to or necessitated by USERRA-covered service, the employee’s pre-service work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of USERRA-covered service and requests leave under the FMLA. To determine the person’s eligibility, the hours he or she would have worked during the period of USERRA-covered service (20 × 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250 hour requirement is met.

For more information on USERRA, go to http://j.mp/er-ra.

Wage and Hour Compliance: Look Out, Here Comes 2014!

Thursday, December 19th, 2013

This is a guest post from Diane Aull. Diane is the Website Manager for Acroprint Time Recorder Company and editor of their Time for Business blog.

2014 wage and hour“Forewarned is forearmed,” goes the old saying. And it’s definitely true where wage and hour law is concerned. To minimize our wage and hour liability, what issues should we be focusing on for 2014?

Worker Classification

For several years now, various agencies have been on alert for employees who have been misclassified as “independent contractors.” All indications are this will continue to be a big issue in 2014.

There are powerful incentives for employers to classify workers as contractors, including savings on taxes, paperwork reduction and more. But strict criteria must be met for that classification to be valid. A significant number of so-called “contractor” positions don’t meet the standard.

Since 2011, the IRS and 15 states have signed on to the Department of Labor’s Misclassification Initiative, agreeing to share information, leads and referrals with each other to help catch employers who misclassify their workers. New York was the most recent addition, signing on to the Initiative in November 2013. The DOL continues to promote the initiative, and more states are expected to sign up in the future.

Action item: If you have any workers you currently classify as contractors, carefully review their situation to make sure that classification is correct.

Internships

Several lawsuits were filed in 2013 on behalf of unpaid interns, claiming they were actually performing compensable labor and should have been paid. In most cases, the courts ruled the interns were right — they were actually serving as unpaid employees and should have been compensated.

Because of the publicity these cases received, we can expect more such cases to emerge in 2014.

Just as with worker classification, there are strict criteria that must be met in order for someone to be classified as an unpaid intern. If the “internship” doesn’t meet those criteria, the workers must be paid at least minimum wage.

Action item: Don’t count on unpaid interns as a source of free labor. Your best bet to avoid potential liability is to pay interns at least minimum wage.

Off the Clock Work

Mobile devices — such as smartphones and tablets — are incredibly convenient but open employers to potential liability. If employees use their mobile device to check email or do a bit of work outside the office, they must report their hours and you must pay them for that time.

Whether employees neglect to report time because they mistakenly believe they’re doing the business a “favor,” or they fail to report time because it’s simply too inconvenient — either way they’re opening your business up to potential liability. All it takes is one disgruntled worker complaining to the state or federal labor department, and you could find yourself on the hook for thousands of dollars in unpaid overtime.

Expect this to become a bigger issue in 2014, as mobile devices become less expensive and their usage more widespread.

Action items: Prohibit off the clock work. If you allow employees to work outside the office, provide an easy method for them to record their hours. Be sure to pay them for all their work time.

Class Actions

We’ve heard a lot of good news (and a bit of bad news) in the area of class actions over the past few years.

Good news: it’s become harder to certify large class action lawsuits. One quarter of these suits now involve classes of fewer than 1,000 plaintiffs.

More good news: according to a study compiled by NERA Economic Consulting, the total dollar amounts of class action settlements have declined from their high in 2007, actually stabilizing over the past several years.

Bad news: the average settlement amount is still nearly $5 million each.

Action items: About 39% of class action suits involve overtime, while missed lunch breaks, misclassification and off-the-clock work comprise 16% to 18% each. Focus on these areas to get the biggest bang for your buck.

You may also wish to include an arbitration clause in your employee handbook or employee agreements. Properly worded, an arbitration agreement can forestall most class action cases. Don’t try to “do it yourself” here. Consult your employment law attorney to ensure the clause is valid and enforceable.

Conclusion

When in doubt, consult your employment law attorney to ensure your policies and procedures are up to date with the latest developments.

Class action suits continue to pose a threat to businesses in 2014 and beyond. Unpaid overtime represents a huge risk. Having an accurate and reliable time tracking system has become imperative to protect your business against overtime claims. Make it as convenient as possible for workers to report their time, no matter where the work is performed.

Finally, make sure your employees understand the importance of reporting all the time they work, and pay them properly for all reported time. With vigilance, strong procedures and effective enforcement, you can minimize your risk.

Acroprint offers a full range of workforce management products including the timeQplus Product Suite, Pendulum workforce management software and AcroTime, their flexible and powerful cloud-based solution.

Workplace Insights is taking a break during the holidays. Check out a new post on Thursday, January 2, 2014. Enjoy the holidays and have a Happy New Year!

Photo Source: danielmoyle