Frequently Asked Questions (FAQ)

FLSA

The duties test that’s used to decide overtime eligibility talks about determining the employee’s “primary duty.” How do we determine that?
An employee’s “primary duty” is the reason he or she was hired by the organization. Employers should review the importance of the employee’s exempt duties versus nonexempt work and how much supervision is needed for the position. Employers can determine this by looking at whether the employee spends 50% or more of their time on exempt tasks. Read more here about Exempt vs Nonexempt, to ensure you have your employees classified properly.
How do we determine “primary duty”?
Properly classifying employees is a daunting task for employers to ensure they are paying their nonexempt employees overtime in accordance with the Fair Labor Standards Act (FLSA). The duties test that is used to determine an employee’s eligibility for overtime refers to the employee’s “primary duty” – but what is that?

Primary duty means the employee’s major or most important duty that they perform. For example, did you hire the employee to manage your inside telemarketers or to provide additional support for inside sales? What is the importance of the employee’s exempt duties versus the importance of their nonexempt duties? How much time is spent on exempt duties versus nonexempt duties? A good gauge is the 50% rule: What is the primary duty the employee spends 50% or more of their time doing? Is that task an exempt duty? Learn more here about what duties are considered exempt duties per the Fair Labor Standards Act (FLSA) duties test.

FMLA

Is an employee who works remotely (75 miles or more from the employer’s office) eligible for leave under the Family and Medical Leave Act (FMLA)?
This first depends on whether the following FMLA eligibility requirements are met:

1. The employee must have been employed with the company for 12 months (which do not have to be consecutive).

2. The employee must have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

3. The employer is a covered employer (one that employs 50 or more employees within a 75-mile radius of the worksite).

If all three requirements are met, the issue then is the employee’s work location. An employee who works remotely (75 miles or more from the employer’s office) is covered under the FMLA if the office to which the employee reports and from which assignments are made has 50 or more employees working within 75 miles of its location. FMLA regulation 825.111, paragraph (2) applies to remote and other off-site workers. The regulation states: “An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexi-place or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.” In other words, home offices may not be considered the work location for FMLA purposes. Employers must consider the physical office location that these remote employees report to and receive their assignments from as being the work location for FMLA purposes. If the remote worker’s reporting office employs 50 or more employees within a 75-mile radius and if that individual meets the 12-month and 1,250-hour requirement, the individual is eligible for FMLA leave.

We have an employee who will be out for several weeks for a serious health condition. She is not requesting to use FMLA leave because she has enough paid sick leave to cover most, if not all, of her leave. Can employees choose to not use FMLA leave even when they meet the qualifications? And if they qualify for FMLA leave, can the employer require them to use it?
The obligation to designate leave as FMLA (Family and Medical Leave Act) is with the employer, not the employee. It is not up to the employee to self-elect when they want their time off to be considered FMLA leave, even if they have other paid leave available to them. Once it is determined that the employee qualifies for FMLA leave, the employer should immediately start the FMLA process and notify the employee that their leave is being designated as FMLA and that the FMLA leave will run concurrently with the paid sick leave. By doing so, the employer “starts the clock” on the FMLA and any time the employee needs to take above and beyond what their available paid time off covers will be unpaid FMLA leave. Employers should ensure they have an updated policy that requires employees to use all their available paid time off (sick, vacation, personal) concurrently with FMLA.

Employee Handbooks

Should my company have an employee handbook in place?

Employee handbooks are not required, but they should be a staple to any business and, if written properly and understood by both the company and employees, can help prevent liability. Keep in mind that when you draft a handbook you want it to reflect your company’s actual practices — “say what you do and do what you say”. Employee handbooks set the expectations between the employer and the employee. They should provide clear guidelines on the company’s rules and practices. Please contact Workforce Solutions if you would like to discuss an Employee Handbook.

Do we really need an employee handbook?

Well-crafted employee handbooks are the foundation for effective HR management and compliance and can be a highly effective way to reduce your organization’s risk for failure to comply with appropriate laws and regulations. A handbook sets expectations — telling your employees what you expect of them and what they can expect of you. It provides general guidelines for employees to operate under, promotes treating employees with fair and consistent practices, and describes employee benefits. Providing a well-developed and complete handbook helps your management determine proper steps to take in handling a variety of topics such as attendance, leave, performance concerns, and disciplinary action, including terminations.

The return on investment (ROI) of the employee handbook is immeasurable; it can provide support in the defense of unemployment claims or lawsuits, minimize decision making in the moment for your workforce, and serve as a valuable resource when guidance is needed. HR Knowledge recommends that all employers have a clear, well-documented employee handbook that is distributed to employees as needed or kept up-to-date on an employee intranet. Once the handbook is distributed, via hard copy or electronically, you should have all employees sign an acknowledgment form confirming they received it. We also recommend that you have an attorney or a trusted HR advisor such as HR Knowledge review your handbook prior to distribution.

I-9 Forms

Who fills out an I-9 form?

Form I-9, Employment Eligibility Verification, is used by the federal government to verify the identity and authorization of your employees to work in the US. It must be completed for all employees working at your company within three days of their starting date. The form has two parts. The first part, or section 1, is for the employee to complete on the first day of employment. The second part, or section 2, is for the employer to complete within the first three days of the individual’s employment. The employer does this while reviewing the supporting documents that the employee is required to provide. Learn how to avoid common Form I-9 mistakes with the Guidance for Completing the Form I-9 manual.

As the owner of a business, am I required to complete Form I-9, Employment Eligibility Verification?

Employers use Form I-9 to verify an employee’s identity and to establish that the worker is eligible to accept employment in the US. Form I-9 requirements are triggered by the hire of an individual for employment. A “hire” is the employee’s actual commencement of employment for wages or other remuneration. If any of the owners are also employees of the company, then each owner is required to complete a Form I-9. Failure to comply with all Form I-9 requirements could result in civil penalties imposed by United States Citizenship and Immigration Services (USCIS) against the employer. Therefore, as the owner, if you are provided payroll or other remuneration, you are required to meet Form I-9 requirements or face potential penalties.

We have an employee who provided his Social Security card and driver’s license as his identification documents to complete Form I-9, Employment Eligibility Verification. His Social Security card includes the statement “Valid only with DHS (Department of Homeland Security) authorization.” Is he allowed to work for us?

While the Social Security number may be valid for tax purposes, the card alone is insufficient for meeting work authorization requirements under Section 2, List C (which includes such documents as an unrestrictive Social Security card and birth certificate). The statement “Valid only with DHS authorization” implies the card contains restrictions.

Because of the restriction, the employee will need to provide other documentation that meets the authorization requirements. The employee can offer a different document from List C or one form of identification from List A (which includes a U.S. passport, permanent resident card, and other documents).

As a best practice, we recommend that you give the employee a copy of the list of acceptable documents so they can figure out what documents to present. If the employee cannot produce the required documentation, they cannot be employed.

We have an employee whose Form I-9 was not fully completed when the employee was hired. If we fill out the Reverification section on an incomplete form, will that bring us into compliance?

No, the Reverification section of Form I-9 (Section 3) is a limited use section. Section 3 should only be completed in two cases: 1) when an employee is rehired or 2) when an employee’s employment authorization requires reverification. If you discover that your employee did not complete the I-9, have them complete a new I-9. According to U.S. Citizenship and Immigration Services (USCIS), you should retain the old, incomplete form and staple it to the new, properly completed Form I 9. USCIS also recommends attaching to the new form a brief memo explaining the error, when it was discovered, and how it was corrected.

Benefits

Can I offer different benefits to different employees?

Employers have discretion when designing their benefit plans and can make eligibility distinctions. These differences should only be based on a bona fide employment-based reason and applied to all similarly situated employees. Examples of employment-based reasons include tenure, full- or part-time status, exempt/nonexempt status, or geographic location.

Payroll

Can a business require employees to use direct deposit of their paychecks?

Some states make it mandatory for employees to use direct deposit for their paychecks. However, most states prohibit employers from requiring employees to use either direct deposit or pay-card programs. Please contact Workforce Solutions to answer your state specific questions.

Do I need to pay an employee for a company-observed holiday?

It depends. Nonexempt employees must only be paid for time actually worked, so holiday pay is not required; therefore, nonexempt employees may request to use accrued paid time off to cover the closure. Exempt employees must be paid their regular salary, so employers cannot “dock” their pay when the business is closed for less than one week. If your company is closing for two days to observe the 4th of July you would be required to pay all of your exempt employees for that full week, if they took additional time you can force exempt employees to use accrued paid time off to cover the closure.

Do we need to pay our hourly employees for “off-duty” emails?

Simply put, yes. Hourly (nonexempt) employees need to be compensated for all hours of the day in which they work, day or night – even when they are technically off the clock. However, it is common practice for employees to send work email on weekends or while on vacation. If ever audited, this could land employers in hot water with overtime wage laws. HR Knowledge strongly recommends that employers set a clear policy on email usage for hourly staff after hours.

Can we require our employees to use direct deposit?

Most states prohibit employers from requiring employees to participate in direct deposit; however, a few states allow employers to make direct deposit of paychecks a mandatory business decision. Please contact Workforce Solutions to answer your state specific questions.

Discipline/Termination

What do we do if our employee refused to sign a written warning?

Employees are more likely to sign disciplinary notices that clarify immediately above the signature line that they may disagree with the warning and, by signing, they are acknowledging only that they received and reviewed the document. You may also want to give them room for a rebuttal; often employees won’t sign because they do not agree with the contents.

We suggest having the signature line read something like this:

“I acknowledge that I have read and understand the contents and acknowledge and understand the corrective action required. I also acknowledge and understand the potential consequences of noncompliance. My signature does not mean that I necessarily agree or disagree with the contents of the Written Warning.”

If your employee still refuses to sign, you can have another manager, along with HR, witness that the employee was given the disciplinary warning and refused to sign.

What are the three most common types of job discrimination complaints filed by employees?

In order, the top three most common types of complaints filed are retaliation for making a discrimination complaint, racial discrimination, and sex discrimination.

If an employee resigns with two-weeks’ notice, and we tell the employee to leave prior to the end of the two-week period, are we obligated to pay the employee for the full two weeks?

Employers often have legitimate reasons for wanting an employee to stop working immediately, such as concerns about security or reduced productivity. If the employer has a “required” notice period policy, then most states will view this as an implied contract and require the employer to pay out the notice period. If the employer does not require, but instead requests, a two-weeks’ resignation notice, then employers are not required to pay for the two-weeks’ notice period. However, in most cases, we recommend that all organizations pay for the notice period as a best practice.

There are two important reasons to pay the notice period. First, telling the employee to leave after giving notice can turn a “voluntary resignation” into an “involuntary termination,” likely making the employee eligible for state unemployment compensation. Second, from an employee relations standpoint, terminating employees on the spot when they give their two-weeks’ notice sends a negative message to other employees. If other employees give notice as requested, they may be terminated immediately, so it is unlikely they will provide advance notice of resignations in the future.

If we are issuing severance pay to an employee, does it have to be taxed?

Severance pay is considered a taxable compensation and should be run through payroll. If the employer wishes to avoid tax implications for the employee, the employer may “gross up” the wages to cover the tax deductions from the committed net severance desired. Since the pay is made as part of a separate agreement from wages earned, it is a best practice to pay severance on a separate check.

General

Should we allow our nonexempt employees to access their company email on their iPhone?
“Off duty” emails trigger big overtime liability, letting nonexempt, hourly employees send emails at any time during the day or night when they are off the clock, and can lead to a lawsuit. This issue happens more often than it should, which is concerning. In fact, a survey from Osterman Research reports shows that 94% of employees admitted that they send work emails on the weekends. Another 80% of employees don’t leave their cell phones off while they are on vacation. This means that your non-exempt employees are most likely checking their email and answering their phones when they are not officially on the clock.

Our advice: set a clear policy for hourly associates regarding the use of email. We suggest restricting nonexempt employees’ email access to their scheduled on-duty time only.

Do remote employees need to hang up a workplace poster in their home office?

Not necessarily. Remote employees should have access to workplace posters, but posters can be delivered electronically. The easiest way to ensure telecommuters have access to the relevant federal and state workplace posters is to post them on your organization’s intranet as well as in your physical facilities. If these are not options, the posters can be emailed to the remote employee. If the remote employee will be checking

in at a company location or central office frequently, displaying the posters at that company location will typically meet your obligations.

Do I have to allow my employees to use e-cigarettes in the workplace?

With vapor shops popping up on every corner across the US, we are getting asked more and more about the laws and regulations for electronic cigarettes (e-cigarettes). E-cigarettes are battery-powered devices that mimic cigarettes by vaporizing a nicotine-laced liquid that is inhaled by the user. The use of e-cigarettes in workplaces and public places is a significant public health concern due to the potential health impact of the vapor on users and bystanders. E-cigarettes are also becoming a compliance issue with smoke-free laws. Most local and state laws were enacted before e-cigarettes were on the market, so while laws regarding cigarette smoking do not clearly mention the e-cigarette, it should be assumed that they are not permitted in the workplace in the same way that smoking cigarettes is not allowed in the workplace. We suggest if you have designated smoke-free areas those areas should be designated for e-cigarettes as well. Please contact Workforce Solutions to answer your state specific questions.

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