Posts Tagged ‘Advice and counsel team’

Working While on a Leave of Absence

Tuesday, August 20th, 2013

Pat Rountree 5x7 300dpiCAI’s Advice and Counsel Team answers several questions from members daily. The team often receives questions concerning leaves of absence, such as this one:

Should we allow employees to work from home while on a Leave of Absence?

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

There are several considerations in answering this question:

1) Most importantly, what are the employee’s medical restrictions while on leave and what is your policy?

You do not want to require or allow the employee to perform any work that would violate their medical restrictions. If they want to continue to work on projects at home, monitor emails to keep up with what is going on, or manage employees remotely, it will be determined by your policy/practice if the work is within their restrictions. It will also depend on their job and whether work from home is possible during leave.

2) Is the employee exempt or non-exempt?

If they are exempt and on unpaid leave, under wage and hour laws, you may be required to pay them for the entire week if they work any part of the week unless they are on FMLA (the only time you can pay only for hours worked for partial days) or there is available a permissible deduction for a full day’s absence (not a partial day absence).

If they are non-exempt and you allow them to work they must track, and you must pay them for, all hours worked.

3) Are they on company-paid leave (salary continuation, exhausting paid time under an FMLA policy, etc.)?

If they are on company-paid leave, they are being paid by you so there is no Wage and Hour violation if they work.

4) Are they receiving third party payments (short-term disability or Workers’ Compensation)?

If so, supplemental pay may affect their eligibility for third party payments. Check your disability insurance plan document to see if this is allowed. If on Workers’ Compensation leave, you would report any earnings.

Remember, if the employee is on a company leave of absence, the employee must volunteer to work and it must be approved by management. However, if the employee is working while on a leave of absence, then, in reality, they are not on a leave of absence but working remotely. This may have other unforeseen implications, for example, if out on a FMLA absence, the time they are working should not count against the employee’s FMLA time.

If you have questions regarding leaves of absence, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

 

New FMLA Posters Must Be Up by March 8, 2013

Tuesday, February 19th, 2013

John GuptonIn CAI’s Monday member newsletter, Advice and Counsel Team Member John Gupton shared new regulations published by the US Department of Labor (DOL). The DOL issued a final rule implementing two important expansions of the Family and Medical Leave Act (FMLA):

  1. Provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members, and it enables more military families to take leave for activities that arise when a service member is deployed.
  2. Modifies existing rules so that airline personnel and flight crews are better able to make use of FMLA’s protections.

The new FMLA rule implemented Congressional amendments to the FMLA permitting eligible workers to take up to 26 workweeks of leave to care for a current service member with a serious injury or illness. Congress also created qualifying exigency leave, which permits eligible employees to take up to 12 workweeks of leave for qualifying exigencies arising out of active duty or call to active duty in support of a contingency operation of a family member serving in the National Guard or Reserve. The final rule also includes amendments clarifying the application of the FMLA to airline personnel and flight crews. Until the amendments, many flight crews did not meet FMLA eligibility criteria due to the unique way in which their hours are counted.

In addition to the newest regulations, the DOL released a new FMLA poster. Employers covered by the FMLA must put up the poster no later than March 8, 2013. At CAI, we are in the process of revising our combined Federal poster for members. However, the updated poster will not be available for distribution to our members before the March 8, 2013 posting deadline.

For more information, including the new rule, a military leave guide, fact sheets and other materials, visit http://j.mp/13-fm. You can also call CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746 to go over the FMLA updates.

North Carolina E-Verify Law Starts to Impact Employers

Tuesday, October 2nd, 2012

The E-Verify system is a federal internet-based tool that allows you to determine the eligibility of employees to work in the United States. As of yesterday, Oct 1, 2012, North Carolina companies with 500 or more employees are required by law to start implementing the federal E-Verify system to verify work authorization for all new hires. You must complete online training and sign a Memo of Understanding before you use the system.

Make sure you are familiar with your obligations under the new law. Review the different scenarios below:

You are a federal contractor or subcontractor with the FAR E-Verify clause in your contract

If your company has not yet enrolled in E-Verify, then you have 30 days from the date of contract award to enroll, and 90 days from the date you enroll with E-Verify to initiate verification queries for employees already on your staff who will be working on the contract and to begin using the system to verify newly hired employees. After this 90-day phase-in period, you will be required to initiate verification of each newly hired employee within three business days after their start date. To meet this three-day requirement, employers may initiate verification of a newly hired employee before their start date if the employee has accepted the job offer and filled out the Form I-9.

Please note that pre-screening of job applicants is not allowed; the system may be used for new hires only after the employee has been offered the job and has accepted. Please also remember that you must continue to use E-Verify for the life of the contract for all your new hires, whether or not they are employees assigned to the contract. For more information on the FAR E-Verify clause, go to http://j.mp/ev-fa.

You are not a federal contractor with the FAR clause but want to voluntarily use E-Verify

You must use the federal E-Verify system for all new hires for each hiring site that you choose to use E-Verify. The hiring site is typically where the employee completes the I-9 form. (Note: It may be different from where the form is verified – the verification site.)

However, you can exclude hiring sites if not required by state or federal law to use E-Verify. For more information, go to http://j.mp/11-ev.

You are a North Carolina employer

North Carolina employers will be required to use the federal E-Verify system based on the following schedule: [Note: North Carolina municipalities and counties were required to use it on October 1, 2011.]

  • October 1, 2012 for employers with 500 or more employees (and governmental agencies);
  • January 1, 2013 for employers with 100 to 499 employees; and
  • July 1, 2013 for employers with 25 to 99 employees.

For North Carolina, covered employers are only required to use E-Verify for all employees who work in North Carolina. If you have employees who work in other states but they complete their I-9 paperwork at the North Carolina hiring site, they must be run through E-Verify. If you are hiring sales reps or other employees who will not work in North Carolina, you must consider three things in determining whether you will be required to use E-Verify:

  • Is their hiring site a site in North Carolina for which you are using E-Verify? If yes, they must be run through E-Verify.
  • If not, does the state(s) where they are working require E-Verify and do you meet the criteria? If so, they must be run through E-Verify.
  • If not, is their hiring site a location for which you are already using E-Verify? If so, they must be run through E-Verify.

At a future date, the North Carolina Department of Labor will issue information as a result of hearings on E-Verify to clarify the North Carolina E-Verify requirement. For more information, go to http://j.mp/ev-nc.

None of the above conditions apply to your organization

If none of the above applies to you, check the laws for states where you do business to determine if you are required by state law to use the federal E-Verify system.

If you have questions about E-Verify, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

Photo Source: Victor1558

Ten Things N.C. Employers Need to Know About Independent Contractors and Joint Employment

Tuesday, December 14th, 2010

Gretchen Ewalt from the Ogletree Deakins law firm shared her expertise on Employee Classification (Employee or Independent Contractor) and Joint Employment at CAI’s October members-only Ask the Expert. Participants left the sessions with a number of recommendations that, if implemented, will limit their organization’s exposure to costly litigation and potential penalties.

Below are some of the points covered in these sessions.

1. Independent Contractor Tests. There are a number of factors considered by the IRS and the USDOL in determining if a worker is an independent contractor or an employee.  A brief description of a true independent contractor is as follows:

  • The employer does not control the means and manner of how a project is performed, only specifying the expectations of the end result.
  • The “contractor” has a viable business concern, having the opportunity to make a profit or suffer a loss, and provides the same services to other employers.
  • The “contractor” absorbs expenses incurred during the project.

2. Penalties for Misclassification. Penalties for misclassifying an employee as an independent contractor include state and federal tax liabilities, as well as back pay for wage and hour overtime violations.

3. Conduct Internal Audits. It is recommended that periodic internal risk analysis audits be conducted to ensure that independent contractors are properly classified.

4. Draft Independent Contractor Agreements. Contracts for independent contractors should be drafted by legal counsel establishing expectations by both parties to clearly show that the independent contractor relationship exists.  Language also needs to be included stating that the contractor waives and relinquishes any rights to the client’s benefit plans and that the contractor agrees to comply with all business/industry standards.

5. Educate Managers and Supervisors. Managers and supervisors should know the difference between an employee and an independent contractor and understand the liabilities incurred due to misclassification.

6. Definition of Joint Employment. A condition where an individual is providing services that jointly benefits two or more employers.

7. Joint Liability. Employers that utilize employees from an outsourcing agency can be held liable along with the agency for complaints filed by those employees with state and federal regulatory bodies.

8. Time Credited for FMLA. The time spent by an outsourcing agency’s employee providing services to a client employer is credited toward FMLA eligibility if that employee is employed as a regular employee by the client employer.

9. Outsourcing Agreements. Agreements with outsourcing agencies should be carefully drafted by legal counsel to ensure that the agency is responsible for taxes, insurance, business licenses and all employment matters, including employee training, disciplinary actions, compensation/benefit programs and maintenance of personnel files.

10. Contract with Reputable Agencies. Make sure that your outsourcing agency complies with all applicable laws and specify such compliance in the outsourcing agreement.  Ensure that their personnel policies/procedures are sound and that their managers are well equipped to effectively deal with agency employee complaints.

If you have questions about employee classification or joint employment, please contact a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.

Photo Source: University of Waterlo