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Important FMLA Changes for ALL Employers

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Effective immediately, the Department of Labor (DOL) Wage and Hour Division (WHD) will now require employers to offer employees the opportunity to use intermittent leave under the Family and Medical Leave Act (FMLA) to attend Individualized Education Program (IEP).

Under the Individuals with Disabilities Education Act (IDEA), public schools are obligated to create Individualized Education Program (IEP) for any child, “who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel.” Additionally, the most recent decision concludes that FMLA applies to any meetings “held pursuant to the IDEA, and any applicable state or local law.”  The wording of this Opinion can be interpreted to mean that FMLA protections for employees can include intermittent leave for parent-teacher conferences, individualized course-planning and other specialized education meetings.

Employer obligations under FMLA have expanded under recent court decisions creating serious exposures and confusion.

For example, FMLA protections must be offered to employees from employers who have more than 50 employees (regardless of distance and/or radius between locations).  Employees may qualify for FMLA protection if they work at a facility that has more than 50 employees in a 75-mile radius.

However, employers who are UNDER 50 are now required to notify employees of what FMLA protections are available to them; handbook policies are NOT considered ample notification regardless of whether or not employees have signed the employee handbook receipt.

Furthermore, employees are NOT required to ask for FMLA.  It is incumbent upon employers to recognize the triggers for FMLA notification and send out appropriate information as listed below:

When an employee has a qualifying leave event (whether standard or intermittent leave), they should always receive (in-person with a signed receipt AND regular mail:

  • Notification of rights and responsibilities
  • Certification of a Health Care Provider (with a job description)
  • Agreement to pay benefits while on leave (if applicable)
  • A letter (with signed receipt) describing important dates and milestones (such as the date information is due, use and accrual of paid time off, and that the employee is required to provide a return-to-work notice indicating potential accommodations)

Upon receipt of the information, employers should send a Designation Notice and a letter describing milestones and important dates.

Employees who are denied FMLA because they have not worked for one year (and/or 1,250 hours in the current or preceding year), they do not work for an employer with 50 or more employees OR they do not work at a location that has 50 or more employees in a 75-mile radius, should receive virtually the same information.  FMLA will also run CONCURRENT with Workers’ Compensation-related time off.

Remember also that employees who do not qualify for FMLA  may still be protected under the Americans with Disabilities Act (ADA) and unpaid personal leaves of absence.

WHAT NOW?

Most employers (regardless of number of belly buttons in the census) find FMLA to be very confusing (and infuriating, if I am being honest).  Just remember that I am here to help.  A good place to start is to make sure your handbook policies cover the following (not an exhaustive list):

  • FMLA (should be at least 8 pages long)
  • Non-FMLA leave (typically called Unpaid Personal Leave of Absence/pregnancy leave/paternity leave)
  • Policies delineating how paid leave should be used during leaves of absence (are employees required to use, can request to use or request not using)
  • Return-to-work programs
  • Disabilities accommodation policies
  • Workers’ Compensation policies
  • Attendance policies and requirements under leaves of absence
  • Strong privacy (HIPAA) policies that STRICTLY PROHIBIT any communication (electronic or otherwise) about any medical information whatsoever

IMPORTANT:  never EVER send FMLA information or paperwork via EMAIL

In addition to other support services, Ask Linda HR Consulting Services offers personalized and realistic Employee Handbook reviews AND FMLA training (and administration) according to your business model and culture.

Although I have tried to highlight the important issues, I am a multi-state human resources/employment law professional and NOT a writer (I am sure you can tell)…so please feel free to reach out to me with any questions or a free onsite consultation.

Respectfully,

Linda Drassen, BSM, MM/HRM, PHR, SHRM-CP

President & Your Personal Human Resources Sherpa

E-Mail:  linda@asklindahr.me

Phone:  210.846.4900

Web:  www.asklindahr.me

LinkedIn:  Linda-Drassen

 Proud member of the ASA

 

 

 

 

 

 

 

 

 

 

Overtime Rule Injunction…not a time to celebrate

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By now you all have learned that a Texas federal judge passed a preliminary injunction to halt the overtime rule scheduled to become effective December 1.  As much as I want to help you celebrate, I must instead remind you that this latest turn of events affects the salary threshold ONLY; if your salaried-exempt employees do not meet the duties tests, then your exposure still exists.

If you are unsure about what a “duties test” is, you are not alone.  So much focus has been placed on the unreasonableness of increasing the minimum salary threshold from $23,660 per year to $47,476 per year (or changes to the highly-compensated threshold from $100k to $134,004k) that no one has been talking about the other very real (and less easy-to-understand) requirements:  the duties tests.

Employees cannot (under existing or new regulations) be permitted to be exempt from overtime just because they work in an office, have a fancy title, handle the books or make some decisions regarding changes to estimates or pricing.  The reality is that job titles have absolutely nothing to do with whether or not a person can be exempt from overtime and having authority to change pricing is not necessarily considered significant enough when determining a salaried classification.

While the duties-tests have been around for years, the duties definitions can be confusing (even the Department of Labor had to settle a $7m lawsuit in August for misclassifying their own employees).  This is especially the case for employers who attempt to review job descriptions without the aid of an outside resource.  Employers are more prone to forcing the duties tests to meet the exemption definitions rather than taking an objective view of whether the duties actually qualify for the exempt-status.  This costly and potentially catastrophic situation occurs because employers have a hard time separating the potential overtime costs from the need to reclassify the employee.

I promise, whatever you spend for a consultant is much less than you would spend for the inevitable wage and hour lawsuits; unfortunately, I have seen the devastating reality of misclassification.

President-elect Trump will likely make some changes to the threshold requirements for small-businesses (which is typically defined as 50 or less belly-buttons), but having been in human resources for two decades I can tell you, changing the threshold will not fix the issue your organization may be facing and thanks to Obama’s new overtime initiative, your employees and their partners/spouses are much more educated as to what constitutes an exempt employee.

This injunction is temporary so I urge you to continue to educate yourself on the duties requirements so that you can reclassify your employees where necessary before it is too late.

To learn more, I would like to invite you to my highly educational seminar on December 13, 2016 at 8:00 a.m. – 11:00 a.m. at Memco (10876 Hillpoint Drive, San Antonio, TX 78217).

During this seminar you will receive valuable information about classification that extends beyond the threshold.  You will learn:

  • How to survive the new regulations without killing your budget
  • How to communicate reclassification without begging employees to sue you for past misclassification mistakes
  • How to review your employee classifications
  • What changes you should make to your handbook
  • Determine what changes will need to be communicated to the individuals you reclassify from salary to hourly status
  • Clocking in and out requirements (and how to report time accurately to keep you out of the weeds)
  • How to determine your exposure with 1099 subcontracted employees, travel pay requirements, training and education pay, and so much more

Please RSVP at linda@asklindahr.me or via phone at 210.846.4900 by December 12, 2016 as seating is extremely limited.  The cost is $45.00 and can be paid via check on the date of the seminar or via PayPal at linda@asklindahr.me .

New I-9 Form Training

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Please join me on November 22, 2016 for the NEW Form I-9 training.

WHERE:  Memco, 10876 Hillpoint Drive, San Antonio, TX 78217

WHEN:  November 22, 2016 from 8:00 am – 11:00 a.m.

$45.00 per person at the door OR $180.00 per person for the entire HR Training Series.

You may also pay at Paypal.com (linda@asklindahr.me).

Seating is INCREDIBLY LIMITED so please RSVP by November 21, 2016.  Because of the limited space, NO REFUNDS WILL BE GIVEN.

**Although the topics are subject to change, the HR Training Series will include important topis such as FLSA (Wage & Hour Compliance), Federal Contract Compliance, Winning Unemployment Claims, Safety Audits, and FMLA

Annie (and Arnie): GET YOUR GUN!

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I hope that everyone had a fantastic holiday season and are ready to move forward toward a tremendous 2016!

As you may already know, the Texas Open Carry laws went into effect January 1, 2016. If you are like most employers, you are likely confused about what this means for your employees and your organization. The information below is my attempt at making this new law a little easier for you to understand:

WHAT IS IT?

Effective January 1, 2016, licensed individuals can openly carry firearms on their person in a shoulder or belt holster on most public and private places, with few exceptions. Prior to the implementation of HB 910, Texas law required that license holders carry their firearms in a “concealed” manner.

WHAT DOES IT DO?

This law authorizes individuals with a license to carry a handgun to “openly carry” their handguns in all locations that allow the licensed carrying of a “concealed” handgun.

HOW DOES IT AFFECT EMPLOYERS?

Private employers can still prohibit the carrying of either open or concealed weapons onto their premises by posting notices in compliance with both Texas Penal Code Section 30.06 and 30.07 in English and Spanish. The employer can also choose to allow concealed carrying but prohibit open carrying by posting only the notice in Section 30.07 (in English and Spanish).

Employers must still allow an employee who holds a license to carry a concealed handgun, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition, to transport or store that firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.

FOR EDUCATORS:

Further, effective August 1, 2016, licensed individuals may carry concealed handguns into classrooms, dormitories and other buildings at public and private universities. Private universities have the option to opt out of the law, and many have or are expected to do so. Most public universities are researching and developing guidelines on how best to implement the law. The law does not allow open carry on campuses, and students must still be 21 to receive their license to carry.

WHAT DO YOU NEED TO DO?:

Employers will be required to post their Handgun Restriction Posters on ALL entrances of their establishment, including employee entrances.
1) If you wish to ban ALL handguns (concealed and open carry), you will need a set of both 30.06 and 30.07 posted at all entrances of the establishment.

2) If you wish only to ban concealed handguns and not open carry handguns, you only need to post 30.06.

3) If you wish only to ban open carry handguns and not concealed handguns, you only need to post 30.07.

You can purchase these posters from: FederalAndStateLaborLawPosterStore.com or with whomever you purchase your law posters from. I can provide you with a sample for free – just let me know.

Your handbooks should contain a written policy that outlines the mandatory restriction of employees from carrying or possessing firearms while on the job and state that policy violators will be dealt with immediately with appropriate penalties, including termination and possible criminal prosecution.

As always, I am here to help guide you through these confusing policies – 2016 seems to be an active “new policy” year for our government, so if you need a handbook, want to talk about your exempt versus non-exempt labor exposure, or need other HR services, please reach out to me and I will contact you immediately.

Have a GREAT 2016!

Small Reprieve for New Regulations: but now is not the time to rest…

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In 2014, President Obama directed the Secretary of Labor to update the overtime requirements for “white-collar” employees. In May, 2015, the Department of Labor (DOL) generated (what can only be described as) aggressive changes to the criteria which allows employees to be exempt from overtime.

Initially scheduled to begin January, 2016, the more serious proposed changes include the following:

1. Increasing the minimum annual salary threshold by more than 46%. Under the proposed changes, the minimum would first increase from $455 per week (or $23,600) per year to $921 per week ($47,892.00 per year). This DOL would publish notices throughout 2016 adjusting this minimum amount to $970 per week ($50,440 per year).

2. The minimum compensation for Highly Compensated Employees (HCE), typically executive-level staff members, from its current level ($100,000.00) to $122,148.00 per year with annual adjustments for the minimum salary thresholds.

As with the current requirements (see below), there will be no exceptions for non-profits or small businesses; everyone will have to comply.

Although the new standards have employers running the gambit from either living in denial that it will ever happen to a mad scramble to make adjustments early, many organizations are already in violation of the current regulations.

FLSA individual and class-action lawsuits, particularly from employees who claim they were “misclassified” as exempt when they should have been paid overtime, are on the rise; so much so that some EPLI (Employer Practices Liability Insurance) policies will no longer cover the price of defense against such claims and definitely will not pay for the penalties associated with the lawsuits. And since most employers do not require salaried employees to clock in and out, if an employee alleges they worked overtime they will likely win the complaint or lawsuit causing employers to shell out hundreds, and sometimes hundreds of thousands of dollars in overtime payment.

FLSA lawsuits are not like an EEO claim where you can negotiate the penalties based on per-determined factors and circumstances. If an employer is found to be in violation, employees will be compensated the amount they should have been paid under the regulations (both current and terminated employees).

Now for the good news – the “reprieve.” The commenting period for the proposed changes generated more than 150,000 comments (I would LOVE to read some of these comments); so the new laws have been delayed until mid-to-late July, 2016. I promise you, this date is flexible and should not halt any initiatives you have started…if you have not started moving toward compliance, now is the time you need to start.

Remember that while the laws are changing, you are still required to follow guidelines – regardless of size or industry. Employers should not take the advice of the “larger” organizations and the way they choose to conduct business. I would be a very wealthy woman if I received a dollar for every time I heard the statement, “…but it must be okay because that is the way that (insert any company name) did it when I was working for them.” Many of the organizations referenced in these conversations have faced financially devastating consequences for misclassifying employees.

The current requirements are listed below…when you look upon this information, think about every person you have classified as a salaried-exempt employee and ask yourself, “how much would I owe them if they win a claim against me for two years of back-pay for overtime?” Then consider giving me a call – my rates are much, MUCH less expensive than paying fines and penalties.

CURRENT (BASIC) TESTING RULES TO LEGALLY CLASSIFY EMPLOYEES AS EXEMPT FROM OVERTIME:

Salary Level Test: Employees who are paid less than $23,600 per year ($455 per week) are NON-EXEMPT. Employees who earn more than $100,000 per year are typically exempt.

Salary Basis Test: Generally, an employee is paid on a salary basis if said employee has a “guaranteed minimum” amount of money the employee can count on receiving for any work week in which any work is performed. This amount need not be the entire compensation received, but there must be some amount of pay the employee can count on receiving in any work week in which s/he performs any work.

An employee who meets the salary level tests and also the salary basis tests is exempt only if s/he also performs exempt job duties. These FLSA exemptions are limited to employees who perform relatively high-level work. Whether the duties of a particular job qualify as exempt depends on what they are. Job titles or position descriptions usefulness in this determination. Secretarial duties are typically not exempt from overtime even if the employee is called an administrative assistant; likewise, a person titled “CEO” should be non-exempt if the job tasks are that of a receptionist. It is the job tasks that need to be evaluated (along with how the job tasks fit into the operations) to make a determination of compliance.

There are three typical categories of exempt job duties, called “executive,” “professional,” and “administrative.”

BASIC Executive Job Duties (must meet all three requirements):

1. Regularly supervises two or more employees, AND
2. Has management as the primary duty of the position, AND
3. Has some genuine input into the job status or other employees (such as hiring, firing, promoting, etc.)

Remember that “supervision” must include primary supervisory duties related to the career paths of employees as a primary duty. If your executive-exempt employee is not considered “in-charge,” then they will likely not meet the exemption requirements.

BASIC Professional Job Duties:

Typically considered “learned professions” such as lawyers, doctors, architects, clergy (those who perform work requiring “advanced knowledge.” As with other exemptions, simply having a degree or professional certification is not enough; it is definitely not enough to have a degree in basket-weaving when they work as an engineer.

Professionally exempt employees must have a relevant education that surpasses high-school in fields that are distinguished from mechanical arts or skilled trades.

BASIC Administrative Job Duties (DOES NOT include Computer Professionals):

The definition provides that exempt administrative job duties are:

1. Office or no-nmanual work, which is
2. Directly related to management or general business operations of the employer or the employer’s customers, AND
3. A primary component of which involves the exercise of independent judgment and discretion about
4. Matters of significance.

Most bookkeepers, accounting staff, payroll clerks, secretaries, administrative assistants, drafting and/or AutoCAD operators and general clerical support staff members are NOT legally permitted to be classified as exempt from overtime.

When considering whether or not your administrative personnel meets the appropriate criteria, ask whether the person has the authority to formulate, interpret, and/or change company policies; how major the employee’s assignments are in relation to the business and/or enterprise (does the employee buy fleet vehicles or paperclips)? Routinely ordering office supplies, completing forms, preparing routine reports and/or help desk type functions are NOT strong enough to make an employee exempt; however, some executive-level assistants who run the life of their superiors may meet the duties.

The road to compliance is rarely easy and it is sometimes difficult to know where to start. Ask Linda HR Consulting Services can help you navigate the minutia of this (and many more) compliance issue. Call me today to schedule your no-obligation consult at 210.846.4900.

 

Ask Linda HR Consulting Services Receives 2015 Best of St. Hedwig Award

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Press Release

FOR IMMEDIATE RELEASE

Ask Linda Hr Consulting Services Receives 2015 Best of St. Hedwig Award

St. Hedwig Award Program Honors the Achievement

ST. HEDWIG October 4, 2015 — Ask Linda Hr Consulting Services has been selected for the 2015 Best of St. Hedwig Award in the Human Resource Consultants category by the St. Hedwig Award Program.

Each year, the St. Hedwig Award Program identifies companies that we believe have achieved exceptional marketing success in their local community and business category. These are local companies that enhance the positive image of small business through service to their customers and our community. These exceptional companies help make the St. Hedwig area a great place to live, work and play.

Various sources of information were gathered and analyzed to choose the winners in each category. The 2015 St. Hedwig Award Program focuses on quality, not quantity. Winners are determined based on the information gathered both internally by the St. Hedwig Award Program and data provided by third parties.

About St. Hedwig Award Program

The St. Hedwig Award Program is an annual awards program honoring the achievements and accomplishments of local businesses throughout the St. Hedwig area. Recognition is given to those companies that have shown the ability to use their best practices and implemented programs to generate competitive advantages and long-term value.

The St. Hedwig Award Program was established to recognize the best of local businesses in our community. Our organization works exclusively with local business owners, trade groups, professional associations and other business advertising and marketing groups. Our mission is to recognize the small business community’s contributions to the U.S. economy.

New Proposed Rules FINALLY Submitted

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On Thursday, March 13, 2014, President Obama signed a Memorandum directing the Secretary of Labor to update the regulations that dictate “white collar” overtime exemption rules to (as stated by the President) “make overtime exemption rules easier for employers to understand.” These new easy-to-understand set of rules (that took the Department of Labor well past the original deadline of November 2014 to draft) were finally sent to the Office of Management and Budget (OMB) for consideration on May 5, 2015.

Even though the new changes will likely cause some form of acid-reflux for employers, the current rules can be difficult to understand and the requisite salary level of $455 per week is low by today’s standards.

Under the current rules, employees must meet stringent criteria to qualify for exempt-level status. Most of the positions are required to receive a minimum salary of $455 per week and carry several specific primary duties. Administrative professionals, for example, must perform non-manual office work that is related to management or general business operations of the employer or employer’s customers (as their primary duty), AND must exercise of independent judgment and discretion about matters of significance as a primary component of the position. In other words, if your receptionist or secretary is a salaried-exempt employee, you are likely already in violation of the law.

The Department of Labor (DOL) chose to focus on two main areas for their revisions: modifying primary duties requirements (such as nonexempt duties having to be less than 40 to 50 percent for a worker to still be classified as exempt) and raising the minimum salary levels to $42,000 to $61,000, annually.

As with most new government regulations, employers should be ready to feel immediate consequences should they choose to ignore the ruling which is scheduled to be finalized in about eight weeks. As it stands now, wage and hour claims are already the fastest growing area of class litigation today.

Employers found guilty of mis-classifying employees as exempt from overtime could be required to pay employees back wages for up to two years of overtime (three if the employer is found guilty of willfully violating the statutes); employees may also be awarded an equal amount as liquidated damages. Furthermore, employers can expect to pay additional penalties of up to $1,100 for each violation.

Finally, I cannot stress enough that titles have little to do with determining whether or not an individual qualifies to be exempt from overtime. An individual can have a management title but still not be permitted to be a salaried exempt employee.

What to do Next…

For employers still trying to unravel and recover from the mysteries surrounding penalties and financial requirements for the Affordable Care Act, this is not good news. But we will NEVER present you with a challenge without having a solution. Ask Linda HR is ready to help you:

1. Conduct interviews with your salaried exempt level positions and review your job descriptions to ensure the positions can indeed be exempt from overtime
2. Ensure your employees understand his or her duties well enough that they can correctly answer the DOL’s questions should you become the subject of an audit or lawsuit
3. Review and make recommendations regarding your timekeeping procedures. REMEMBER: the DOL is likely to side with employees who assert he or she worked overtime and you are unable to prove otherwise
4. Review your clock-in/clock-out policies in your current employee handbook to include strategies to effectively deal with violations of your policy

Job descriptions are difficult, tedious and usually the most dreaded business task; giving this over to a professional can save you time, money, and certainly, ulcers and once this final rule is announced, it is very likely that employees will seek some type of relief for their individual situation.

Ask Linda HR Consulting Services is here to help! Contact Linda at 210.846.4900 for your free assessment.