HR checklist: 5 things to-do before the new year

2020 has been… a year. But before HR professionals look hopefully to the future, they need to tie up loose ends to ensure their workforce starts the new year off on the right foot.

“This has been a strange year, and a stressful one for both employees and their companies,” says Tauhidah Shakir, vice president of human resources and chief diversity officer at Paylocity, an Illinois-based HR software company. “Anything you can do to get ahead of things to wrap up this year is going to help alleviate that stress and get everyone off to a good start.”

The pandemic has caused a lot of stress in the workplace. In November alone, 42% of Americans reported experiencing cases of anxiety or depression, according to the Centers for Disease Control and Prevention. As an HR manager, Shakir believes that staying organized, and helping employees through end of year changes will help alleviate stress for everyone. To help other employers cope with these unprecedented times, she created an end of the year to-do list to help other HR professionals stay on track.

 Note last payroll date

“Keep an eye on the payroll process, and be sure to note the first day of the New Year falls on a Friday so it doesn’t take you by surprise,” Shakir says. “You have to make sure people are getting their sick and bonus time. Have it all plotted out so you’re not rushing at the last minute.”

 Open enrollment

“This isn’t like any other open enrollment; HR needs to over communicate what benefits they’re offering, and which ones are going to help their employees the most,” she says. “We don’t know how much things are going to change in the New Year; make sure employees are prepared by making them aware of any mental health, financial wellness and other benefits that can help.”

 Go paperless

“Since many of us are not all working in the same space right now, this is the perfect time to switch the workforce over to a completely paperless documentation process,” Shakir says. “Email employees their end of year documents; it’s going to be a lot less stressful than them waiting for it to come through the mail.”

 Employee feedback

“This year presented a lot of challenges for everyone, and you’re going to want to take any lessons learned into the New Year,” she says. “You’re looking for lessons learned, ways to improve to make benefits more accessible to employees. There’s always room for improvement, so be sure to be open to what employees are telling you.”

 Be flexible

“A lot of employees are fatigued about working from home and feeling like they have no control right now,” Shakir says. “Remember employees have a lot on their plate right now, especially with the winter holidays going on, so be kind and flexible about when they work so they can juggle all their responsibilities.”

SOURCE: Webster, K. (16 December 2020) "HR checklist: 5 things to-do before the new year" (Web Blog Post). Retrieved from https://www.benefitnews.com/list/hr-checklist-5-things-to-do-before-the-new-year


Three Communication Tips to Raise Productivity

Communication is often the key to success especially within the workplace and during team projects. If communication expectations are laid out and shown to employees, the chance of higher productivity is more common. Read this blog post for helpful tips.


If you're looking for ways to bump productivity, rescue slumping performers or improve teamwork, start with your expectations. These subtle—but very powerful—elements of your leadership toolkit can produce lasting results.

Raising your expectations doesn't require you to adopt a perpetual cheery optimism, but it does require you to make a brutally realistic assessment of current conditions. If productivity is low, cycle time is horrible and/or quality is poor, you need to acknowledge the facts—or you'll never be able to improve performance. And part of that brutal assessment requires looking in the mirror. Perhaps, without realizing it, your underlying beliefs are contributing to the performance situations you see around you.

Three components make up the messages you send: the words you use, the way you say them and your nonverbal cues.

Words

Here are some examples of how to frame your expectations for performance improvement in three different situations.

  • If productivity is down, you might say: "Well, as we look at productivity, we can see that it's 2 percent below where it was last year. I know we can get back to where we were—and eventually beyond—because we have the horsepower right in this room to do it." In selecting these words, you've acknowledged where performance is and expressed confidence about improvement.
  • If you're making progress in an area—but more progress is required—the message might be: "While we're making progress on quality, it's still not where it needs to be. I know we can get to where we need to be by continuing our Six Sigma efforts. Let's look and see where we need to put our resources next."
  • If performance is good and you want to boost it more, the message should be: "Cycle time is good, never been better. Let's look at how to cut it even further. I know we can do it if we work together to figure out how."

In each example, your words describe the present situation in simple and direct terms and also express confidence in moving to further improvement.

Verbal Intonations

The tone of your voice is the second element of your message. Everyone has experienced situations where the words sent one message and the tone of voice sent another. When there's a conflict, most people believe what is conveyed by the tone of your voice. So, make sure that your tone matches the positive message of your words. Not only should you avoid the obvious mismatch, but also the unintentional mismatch—those occasional situations where your words say one thing and your tone of voice says another.

Nonverbal Cues

The bulk of the meaning lies here. You can say the words, and your tone of voice can match the words. But if you're looking around, tapping your fingers, shaking your head "no" or doing any one of the hundreds of other seemingly little things that say, "I don't believe in you," you're not going to get the performance you want. Here are five categories to check yourself against:

1. Body position. If your arms are crossed, your legs are crossed away from the person you're communicating with or you're giving the "cold shoulder," then you're sending negative messages. On the other hand, if your body position is open—you're facing the person rather than looking away—you communicate honesty, warmth and openness. If your posture is erect rather than slumping, you communicate positive beliefs. And if you're leaning slightly forward, you demonstrate interest in the other individual.

2. Hand gestures. Avoid tapping your fingers ("I'm impatient"), hiding your mouth ("I'm hiding something"), wagging your finger (the equivalent of poking someone with your finger) and closed or clenched hands ("I'm upset"). These gestures all conflict with an "I believe in you" message. Instead, use open hands with palms up ("I'm being honest with nothing to hide") or touching your hands to your chest ("I believe in what I'm saying"). Both of these emphasize a positive message.

3. Head. If your head is shaking back and forth or tilted off to one side, you're sending a message of disbelief. On the other hand, if your head is facing directly toward someone and you're nodding up and down, you're delivering a nonverbal message of belief and confidence.

4. Facial expressions. Smile, and keep your mouth relaxed. Show alertness in your face and act like you're ready to listen. Do these regularly and you'll have created an open communication pattern with someone who will believe in your sincerity. On the other hand, if you're tight-lipped, are clenching your jaw muscles and have only a grim smile, no smile at all or a frown, you'll send a message that says: "No way can you possibly succeed at this project."

5. Eyes. Maintaining good eye contact is one of the most important nonverbal signals you can send. It conveys the message, "I'm interested in you and when I say I believe in you, I really do." Making sure that your eyes are open wide is also helpful. Squinting can deter the recipient. Worse yet is looking around, paying attention to other things and not paying attention to the person or topic at hand.

Communicate high expectations well enough and you may even have to step aside to avoid getting run over by a team of committed players whose performance is accelerating.

SOURCE: Connellan, T. (29 September 2020) "Three Communication Tips to Raise Productivity" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/people-managers/pages/three-communication-tips-to-raise-productivity.aspx


Managers: Be Upfront with Staff to Build Workplace Resilience

Anew pandemic-related study found that workplace resilience—how employees respond to obstacles—is developed when managers and senior leadership keep employees informed about organizational challenges and the near-term future of the business.

Workplace engagement expert Marcus Buckingham, head of the ADP Research Institute, surveyed 26,500

employees from 25 countries in June to understand the impact of the COVID-19 pandemic on the workplace. Buckingham revealed results of the study at the HR Technology Conference and Exposition held virtually Oct. 27-30.

The main conclusions were that workers' resilience levels around the world are low— just 17 percent of workers overall from the surveyed countries were shown to be highly resilient—but resilience increases with direct, personal experience with the coronavirus.

"We humans do better psychologically when we deal with reality head-on," Buckingham said. "We do not need senior leadership to sugarcoat things and pretend that things will go back to normal. People need facts, not blithe reassurance. Their well-being is preserved, not diminished, when they can see the reality of the situation and respond to it, rather than when it is hidden from them or unknown."

He added that the realization should be eye-opening for managers. Mollifying employees or being vague about what is happening during a crisis like the COVID-19 pandemic "will not make them feel better," he said. "When people know what is happening, they can build resilience, overcome fear and access their capacity."

The ADP Research Institute came up with a series of questions to measure resilience at work, including questions about autonomy, the ability to compartmentalize, the ability to find strength in work, optimism about the future, and whether or not managers and senior leaders are trusted. Survey participants were also asked how they had personally been affected by COVID-19, what workplace changes they had experienced and which of those changes they thought would become permanent.

"We were able to calculate which employees are highly resilient—demonstrating agency and the ability to compartmentalize, while feeling psychological safety and demonstrating trust in their leaders' ability to anticipate the future, communicate and follow through on commitments," Buckingham said.

His prediction going into the project was that the respondents from countries that had responded most effectively to the pandemic, such as Singapore, South Korea and Taiwan, would display the most resilience, while workers from countries more severely impacted by the virus like Brazil, India and the United States would show comparatively lower levels of resilience.

"To my surprise, this thesis did not hold up," he said. The countries with the highest percentage of highly resilient employees were India (32 percent), Saudi Arabia (26 percent) and the United Arab Emirates (24 percent), followed by the United States (16 percent).

The countries with the lowest percentage of highly resilient employees were South Korea, Sweden and Taiwan (all with 8 percent).

The data showed that there was no statistically significant difference in resilience based on factors such as gender or age. But one variant factor made a big difference—more direct experience with COVID-19 led to higher resilience.

If someone responded that he or she had had COVID-19, cared for a loved one with the virus, or knew a friend or work colleague with it, that individual was three times more likely to be highly resilient than someone who didn't. If the respondent answered "yes" to all the COVID-19 impact questions, he or she was four times more likely to be highly resilient.

Experiencing workplace changes and disruptions, such as the use of protective gear, sudden remote work, and layoffs or furloughs, also led to high resilience.

"Workers who experienced at least five changes at work were 13 times more likely to be highly resilient," Buckingham said.

The experience of change also influenced expectations for the future of work. The more changes workers experienced, the more likely they were to predict that such changes would become permanent.

The study also found that while employee engagement and resilience are related, they are independent of one another. "You can be highly resilient but not very engaged, and very engaged but not very resilient," he said.

There's one thing managers can do to build both engagement and resilience, Buckingham added: "If things are changing quickly, like the year we just experienced with COVID-19, an antidote to that is frequent check-ins. Ask your employees at least weekly, 'What are you working on?' and 'How can I help you?' "

SOURCE: Maurer, R. (11 November 2020) "Managers: Be Upfront with Staff to Build Workplace Resilience" (WeB Blog Post). Retrieved from https://www.shrm.org/hr-today/news/hr-news/pages/managers-be-upfront-with-staff-to-build-workplace-resilience.aspx


HR Professionals Struggle over FMLA Compliance, SHRM Tells the DOL

In addition to the daily struggles that HR Professionals have to resolve, they are faced with many frustrations that have stemmed from the federal Family and Medical Leave Act (FMLA). Read this blog post to learn more.


In a Sept. 15 letter to the U.S. Department of Labor (DOL), the Society for Human Resource Management (SHRM) highlighted many of the challenges and frustrations that confront HR professionals as they comply with the federal Family and Medical Leave Act (FMLA).

"SHRM supports the spirit and intent of the FMLA, and our members are committed to ensuring employees receive the benefits and job security afforded by the act," wrote Emily M. Dickens, SHRM's corporate secretary, chief of staff and head of Government Affairs. "While it has been more than 25 years since FMLA was enacted, SHRM members continue to report challenges in interpreting and administering the FMLA."

The letter, developed with input from SHRM members, was in response to a request for information issued by the DOL's Wage and Hour Division on July 17. The DOL solicited comments and data "to provide a foundation for examining the effectiveness of the current regulations in meeting the statutory objectives of the FMLA."

According to Ada W. Dolph, a partner at Seyfarth Shaw who practices labor and employment law in Chicago, “SHRM’s comments echo what we are hearing from clients in terms of their challenges in implementing FMLA leave, particularly now with the patchwork of additional state and local leave requirements that have emerged as a response to COVID-19."

She added, "Our experience shows that regulatory gray areas add significant costs to the administration of the FMLA and impact the consistency with which the FMLA is applied to employees. We are hopeful that [the DOL] will implement SHRM’s proposed revisions, which provide much-needed clarity for both employers and employees."

Wide-Ranging Challenges

In its comment letter, SHRM addressed several issues its members have reported:

CHALLENGES WITH CONSISTENTLY APPLYING THE REGULATORY DEFINITION OF A SERIOUS HEALTH CONDITION

"Continuing treatment by a health care provider" as currently defined in federal regulations creates uncertainty for SHRM members on how to treat an absence of more than three consecutive days, according to SHRM's letter. "If there is not 'continuing treatment,' then it does not constitute a 'serious health condition' under the regulations," the letter explained. "However, if the employee does receive additional treatment, it's not clear whether these initial three absences are related to a serious health condition."

SHRM pointed out that several members "have suggested increasing the time period of incapacity, indicating they spend a lot of time processing employee certifications for missing four days that they believe more readily falls under sick time or paid time off."

Further guidance, including criteria and examples of when employers may obtain second and third medical opinions, "would be helpful, as many SHRM members reported declining to challenge an employee's certification at all because the conditions under which they may challenge those certifications are unclear or cumbersome," SHRM said.

Members also reported that obtaining documentation from health care providers on the need for employees to take leave to care for a family member with a serious health condition was difficult, and that doctors were often vague about identifying how the employee fits into the caregiving equation.

CHALLENGES WITH INTERMITTENT LEAVE

SHRM members reported that intermittent leave-taking is the most likely FMLA leave to be abused by employees.

"Employees are permitted to take incremental leave in the smallest increment of time the employer pays, as little as .10 of an hour, which members reported allowed employees to use the time to shield tardiness or other attendance issues," the letter read. "SHRM strongly urges [the DOL] to increase the minimum increment of intermittent or reduced schedule leave that is unforeseeable or unscheduled, or for which an employee provides no advance notice." SHRM suggested several alternative approaches.

For instance, the DOL could:

  • Require that employees take unforeseeable or unscheduled intermittent or reduced schedule leave in half-day increments, at a minimum.
  • Establish a smaller increment, such as two hours, that automatically applies in any instance in which an employee takes unscheduled or unforeseeable intermittent or reduced schedule leave.

Additionally, when an employee takes intermittent or reduced FMLA leave, an employer may transfer an employee to an alternative position. However, under current regulations, employers may only require such a transfer when the leave taken is for "a planned medical treatment for the employee, a family member, or a covered servicemember, including during a period of recovery…."

"Given the potential burden and hardship that intermittent and reduced-schedule leave have on employers, SHRM believes that an employer should be permitted to temporarily transfer an employee on intermittent or reduced-schedule leave to an alternative position, regardless of whether the leave is foreseeable or unforeseeable or whether it is scheduled or unscheduled," SHRM told the DOL.

CHALLENGES REGARDING EMPLOYEES WHO ARE CERTIFIED FOR INTERMITTENT LEAVE FOR CONSECUTIVE YEARS

Employees continue to regularly exhaust and replenish their 12-week FMLA entitlement, based on the rolling 12-month entitlement period, SHRM members reported.

"Combined with the Americans with Disabilities Act Amendments Act requirements to accommodate absences under some circumstances, these unrelenting absences become unreasonable and unduly burdensome to employers," SHRM commented.

Similarly, many SHRM members reported being frustrated that there weren't more mechanisms to challenge potential abuses of intermittent leave (e.g., when employees take every Friday or Monday off).

FRUSTRATION WITH EMPLOYEES NOT PROVIDING SUFFICIENT NOTICE OF THE NEED FOR LEAVE

Many employees provide notice of even foreseeable leaves after the leave has begun, noted SHRM, which recommended that notice of foreseeable leave be required prior to the commencement of leave and not "as soon as practicable."

SHRM also suggested that "a more definitive requirement be imposed so that employees understand clearly that they must provide notice of leave prior to beginning leave," and that "if an employee does not give advance notice, it should be the employee's burden to articulate why it was not practicable to provide such notice prior to the start of the leave. If they are unable to meet this burden, the regulation should permit and specify the consequences."

DIFFICULTIES OBTAINING TIMELY RESPONSES FROM EMPLOYEES AND THEIR PHYSICIANS TO SUPPORT THE REQUESTED LEAVE

If an employee fails to provide sufficient information to demonstrate that he or she may seek FMLA leave, then the employee can be required to provide additional information "to determine whether an absence is potentially FMLA-qualifying," SHRM explained. "However, there is no deadline by which the employee must provide this clarifying information, resulting in extensive, continued delays and continued administrative burdens."

SHRM recommended tightening this time frame to seven days and that the DOL "endeavor to provide firmer and clearer deadlines and notice requirements throughout the regulations."

SHRM members also reported that health-provider fees for completing paperwork often slowed or halted the certification process and asked whether providers' ability to impose these fees could be limited.

New FMLA Forms

Overall, SHRM members expressed satisfaction with recently updated FMLA forms. However, members continue to report that the information received from medical providers is often unclear and that they struggle to determine whether the reported condition constitutes a serious health condition.

The new forms do not account for the possibility that an employee does not qualify for FMLA because the employee doesn't meet the requirement of being unable to perform the functions of his or her job. "As such, we suggest that the medical provider be given the option to indicate that an employee does not meet this requirement," SHRM wrote.

Many members suggested that the DOL allow completion of online forms to speed processing times and reduce the administrative burdens of processing FMLA leave.

Among other issues, SHRM members also reported struggling with how to effectively reconcile FMLA with other leave laws enacted in the wake of the COVID-19 pandemic.

SOURCE: Miller, S. (21 September 2020) "HR Professionals Struggle over FMLA Compliance, SHRM Tells the DOL" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/hr-professionals-struggle-over-fmla-compliance-shrm-tells-the-dol.aspx


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What employers are missing in their workforce data

If employers don't analyze their data thoroughly, they may be missing valuable information that could save their establishment of many costs. Read this blog post to learn more.


Employers are missing out on valuable healthcare information and cost-saving opportunities if they don’t analyze their data thoroughly, panelists at the annual Disability Management Employer Coalition digital conference said.

According to professionals from an insurance company in Portland, Ore., many employers have access to three types of data: healthcare, absence and productivity. HR departments are typically tasked with collecting and analyzing this data, but rarely do they use all three together. But maximizing these findings can help employers better inform their benefit decisions, the panelists said.

“Most employers want to know how much they’re spending on healthcare, but they can learn so much more than that,” said Case Escher, managing partner of the insurance company in Portland, “Very few [employers] use it to explore how health of the workforce is affecting productivity.”

“By comparing health data and absence, you can see if a health condition is causing an employee to miss more work than usual,” said Brycie Repphun, account executive at the insurance company in Portland. “You can use this information to help better inform that person about the services available to them to help them be successful at work.”

Employers can also use their productivity data to help determine if individual employees, or an entire team, are struggling, Escher said. Since productivity is measured differently at every company, and in various positions, employers have to exercise their own judgement about how to interpret it, he said.

“Obviously, if it’s a sales position, and one of your top performers is out because of medical issues, or another personal reason, the productivity of that team is going to suffer,” Escher said. “And if that person is going to be out for a while, the data will likely show that the rest of the team is getting burned out faster to compensate for being understaffed.”

Since the majority of the nonessential workforce is working from home due to the pandemic, Repphun recommends that employers start looking at their data to see how employees are coping.

“Health conditions can definitely impact work performance, but we’re finding that this is happening because of the current work from home situation,” Repphun said. “People aren’t working in ideal conditions, and many have children learning at home as well.”

Escher said self-funded employers are better positioned to make use of their workforce data because they don’t have to go through multiple third-party providers to access all of it. But other employers can still benefit from the information if they’re willing to put in the time and effort to retrieve the reports. While employers can certainly survey their workforce to gauge how working remotely is affecting their productivity, Escher and Repphun said they can get a clear answer by looking at all three data points.

“There’s an indisputable link between health and productivity,” Escher said. “As an employer, you can take this information and use it to make smart decisions to help your employees continue to be successful.”

SOURCE: Webster, K. (31 August 2020) "What employers are missing in their workforce data" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/news/what-employers-are-missing-in-their-workforce-data


Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions

Due to the amount of job losses caused by the coronavirus, President Trump has signed a series of executive orders to provide financial relief. Read this blog post to learn more.


On Aug. 8, President Donald Trump signed a series of executive orders and memorandums intended to provide financial relief to employees and those who have lost their jobs due to the COVID-19 pandemic.

These declarations included a Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, which directed the Treasury Department to defer collection of the employee portion of Social Security FICA taxes—part of required payroll tax withholding—from Sept. 1 through the end of 2020. The deferred taxes may have to be subsequently repaid unless Congress enacts legislation stating otherwise.

Trump cited his authority to postpone certain tax deadlines by reason of a presidentially declared disaster. Democrats, however, are expected to challenge that claim in court. Nevertheless, it is prudent for employers and payroll managers to stay aware of developments and prepare to move quickly if the directive and upcoming guidance are not blocked or superseded by enactment of a comprehensive relief bill.

Payroll tax relief, as outlined in the president's directive, would require employers to take steps to ensure compliance, including working with their payroll administrators to adjust their systems by Sept. 1. Employers would also need to explain to employees that while their take-home pay may go up in the short term, they may be required to repay these deferred taxes at a future date.

Details on employer requirements, however, would depend on Treasury Department guidance, expected to be issued shortly.

The other presidential actions authorized a weekly supplemental federal unemployment benefit of up to $400, reduced from the $600 weekly supplement that expired July 31; continued student loan payment relief; and called for measures to prevent residential evictions and foreclosures resulting from financial hardships due to COVID-19.

 

Reduced Unemployment Insurance Supplement

Republicans in Congress argued that the initial $600 federal supplemental payment disincentivized recipients from seeking jobs, since many were collecting more money unemployed than employed. Some wanted the program reduced to $200 per week, while Democrats argued the program should be renewed at the original $600 per week.

Questions were raised about funding for the $400 unemployment insurance boost, which would pull from FEMA's Disaster Relief Fund to pay for a portion of the supplemental benefits while asking states to fund the remainder. Because states may not use the unemployment program to pay benefits unless they are authorized by Congress, they may have to set up a new system to pay their portion of the supplement.

Unemployment experts were also unsure about how funds will be distributed, who will qualify for benefits and how long the benefits will last, pending regulatory guidance.

FICA Taxes

Social Security and Medicare payroll taxes are collected together as the Federal Insurance Contributions Act (FICA) tax. FICA tax rates are statutorily set and are not adjusted for inflation.

Social Security is financed by a 12.4 percent payroll tax on wages up to employees' taxable earnings cap—$137,700 for 2020—with half (6.2 percent) paid by workers and the other half paid by employers. There is no earnings cap on the Medicare portion of FICA, for which employers and employees separately pay a 1.45 percent wage tax.

The COVID-19-related payroll tax relief only applies to the Social Security portion of FICA.

The Payroll Tax Directive

Section 2302 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted in March and implemented through IRS Notice 2020-22 and a series of IRS FAQs, allows eligible employers to defer the deposit and payment of the employer's share of Social Security FICA taxes for the period beginning March 27, 2020, through Dec. 31, 2020. The deferral also applies to 50 percent of the equivalent taxes incurred by self-employed persons. The deferred payments must subsequently be paid to the Treasury Department, with half due by Dec. 31, 2021, and the other half by Dec. 31, 2022.

The CARES Act provision and related guidance did not apply to employees' share of the Social Security tax.

Under the new presidential directive:

  • The secretary of the treasury is authorized to defer the withholding, deposit and payment to the Treasury of employees' portion of Social Security payroll taxes on applicable wages or compensation paid from Sept. 1, 2020, through Dec. 31, 2020. This provision does not apply to the Medicare portion of FICA taxes.
  • The deferral is to be made available to employees whose earnings during any biweekly pay period is generally less than $4,000, calculated on a pretax basis, which would cover salaried employees earning $104,000 or less per year.
  • Social Security taxes for these employees will be deferred without any penalties, interest, additional amount or addition to the tax.
  • The secretary of the treasury is directed to issue guidance to implement the president's memorandum and to explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred under the implementation of the memorandum.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, blogged that HR lawyers will have until Sept. 1 "to figure out the details." Because the policy terminates on Dec. 31, 2020, "President Trump, or President Biden, will be forced to decide whether to continue this program," he wrote.

A Controversial Move

"By providing this tax relief, American families will have more cash on hand during these critical next few months," according to a White House statement.

White House economic advisor Larry Kudlow said that "we will take any steps possible to forgive this deferral," so employees will not be required to pay back the amounts deferred through Dec. 31, The Hill reported. However, doing so would require new legislation by Congress.

Presumptive Democratic presidential nominee Joe Biden charged that Trump would try to make the cuts permanent if re-elected and said doing so would "undermine the entire financial footing of Social Security."

Prepare to Adjust Systems and Notify Employees

For now, HR payroll managers should:

  • Discuss with their payroll administrators steps to adjust their payroll systems to exclude employees' share of FICA Social Security taxes beginning Sept. 1, pending the issuance of Treasury guidance.
  • Prepare to notify employees that possibly less of their pay will be subject to payroll withholding, although the reduction in payroll taxes may have to be paid back in the future.
  • Expect questions from employees who may be confused about current and future paycheck adjustments.

Employers' Questions Await Guidance

The president's executive memorandum "leaves open a number of questions and issues, some of which will likely be addressed by guidance from Treasury," according to a legal alert by Adam Cohen, Mary Monahan and Robert Neis, partners at law firm Eversheds Sutherland in Washington, D.C. Issues to be addressed, they said, include:

  • Whether the deferral is voluntary on the part of employers, and whether an employer may deposit and pay employees' deferred taxes at any time prior to the applicable due date.
  • Whether employers will be required to withhold all of the deferred amounts from the first paycheck on or after January 2021, or if there be an extended time for collection and deposit? "A lump sum repayment could cause significant financial hardship for some employees, particularly if it is required right after the holiday season," Cohen, Monahan and Neis noted.
  • What to do with respect to employees who terminate employment before Jan. 1, 2021. "To the extent the employee portion of [Social Security payroll taxes] was deferred, an employer may want to withhold it from paychecks prior to termination of employment, unless there is guidance permitting the employee to pay the deferred portion on their federal income tax return or by other means," the attorneys explained. "For lower-paid employees, this may eliminate one or more paychecks at the end of their tenure. In some situations, the employer may end up bearing the cost of the taxes as a practical matter."
  • Whether an employer can use the deferral with respect to some groups of qualifying employees, but not others, where that may be desirable for payroll administration or other reasons.
  • How overtime pay or other variable pay, such as commissions and bonuses, should be taken into account in calculating the $4,000 threshold. "It appears that base pay or wages may be the proper metric in most cases, but further elaboration by Treasury is needed," Cohen, Monahan and Neis said.

A Wait and See Approach

Melissa Ostrower and Robert Perry, principals in the New York City office of law firm Jackson Lewis, "recommend that employers continue to monitor applicable guidance, but not make any changes to their payroll withholding processes at this time."

They added, "We realize that changes to payroll systems require lead time, but given the uncertainty surrounding how the deferral will be implemented and whether it actually will become effective, we think this is the most prudent course at this time."

SOURCE: Miller, S. (10 August 2020) "Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/actions-on-payroll-taxes-and-unemployment-benefits-promise-relief-raise-questions.aspx


Keeping Up with Professional Development During the Pandemic

As many state and local governments recommend and require social distancing, many professionals are looking at other ways to continue growing and developing. Read this blog post to learn more.


Many employees need to accumulate credits to keep their professional credentials, and they may look forward to large gatherings with their peers each year where they can learn about the latest developments in their industry. But the coronavirus pandemic is changing the way employees and businesses are approaching professional development, with many opting—at least for now—for online learning.

"We've seen a large shift in the manner in which these things are being done," said Melissa Peters, an attorney with Littler in Walnut Creek, Calif.

Since March 31, the U.S. State Department has advised U.S. citizens to avoid all international travel due to COVID-19. Within the U.S., the Centers for Disease Control and Prevention (CDC) had urged residents of New York, New Jersey and Connecticut to temporarily halt nonessential domestic travel and asked people everywhere in the country to carefully consider the risks before traveling.

"Some employers are going further and recommending that employees cancel or postpone all nonessential travel," observed Douglas Brayley, an attorney with Ropes & Gray in Boston.

The White House and many state and local governments have either recommended or required people to practice social distancing through April and even beyond—which is causing some business and professional associations to find creative alternatives to their in-person meetings.

Going Virtual

A webinar or videoconference may be a good alternative to an in-person meeting, Brayley said.

Elizabeth Wylie, an attorney with Snell & Wilmer in Denver, noted, "Many companies are bolstering their remote conferencing access to ensure it is adequate to meet the anticipated increase in needs in the coming weeks."

Kathleen Sullivan, chief human resources officer at law firm Clark Hill in Pittsburgh, said her firm is using webinars, videoconferencing and phone conferencing technologies. "Our goal is to continue to provide excellent client service while we ensure we are taking care of our employees," she said.

In response to limits on travel and social gatherings, some licensing bodies have eased up on their e-learning limits. For instance, the Indiana Supreme Court and other state high courts have temporarily waived distance-learning limitations for attorneys seeking continuing education credits.

The Society for Human Resource Management (SHRM) has transformed its 2020 Talent Conference & Exposition to a virtual experience so attendees can stay current and earn professional development credits without leaving their homes.

"We've been working with public health officials and collaborating with the conference venue and vendors to make an informed decision based on the latest science, local public health guidance, and our ability to provide the HR community with the best event and professional development experience you've come to expect from SHRM, in a safe environment," SHRM said on its website.

Should Employers Reimburse Nonrefundable Expenses?

"There is not a uniform practice in terms of [employers] reimbursing for canceled or postponed trips," said Mark Keenan, an attorney with Barnes & Thornburg in Atlanta. He said organizations need to make such decisions based on:

  • The health and welfare of their employees.
  • Whether such trips can be rescheduled or postponed with limited incidental additional expense.
    "However," Keenan said, "most organizations would still reimburse such trips as an appropriate business expense, and therefore should reimburse nonrefundable costs as they would with any other itinerary change."

If the employer paid for the professional development and travel in the first place, any cancellation costs would generally be absorbed by the employer, said Susan Kline, an attorney with Faegre Drinker in Indianapolis. "If it's something the employee signed up for as a personal matter for a weekend or vacation, employers might treat it like any other vacation."

She noted that some states, such as California, require employers to reimburse reasonable business expenses.

Peters said employers are making difficult business decisions as they struggle with the economic impact of COVID-19. "There are legal aspects, but whether or not you want to reimburse people for professional development should be aligned with the company's philosophy and business needs."

The best practice for each business is highly dependent upon its business needs, industry and workforce, Wylie said, and is subject to change as the recommendations of public health agencies evolve.

Stay Updated

"The employer community seems to be very proactive in communicating updates on the coronavirus and the impact on their workforces," Keenan observed. For now, he said, the best practices are to not panic and to monitor the CDC's website.

"The situation is evolving rapidly," Sullivan said. "It is important to stay up-to-date with the current information."

SOURCE: Nagele-Piazza, L. (13 April 2020) "Keeping Up with Professional Development During the Pandemic" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/keeping-up-with-professional-development-during-the-pandemic.aspx


Benefits Consideration for Onboarding Furloughed and Laid Off Employees

As the COVID-19 pandemic continues to create obstacles for the workplace, many professionals are still having to continue with their day-to-day work lives which include having hard discussions with furloughed and laid-off employees. Read this blog post to learn helpful tips on re-enrolling employees into their benefits.


COVID-19 continues to throw us curveballs. While some states that were continuing on their path to recovery are having to backtrack, others have managed to temporarily halt the progression of COVID-19 and are proceeding as planned.

Amidst all this uncertainty, one thing is certain: human resource professionals continue to face overwhelming obstacles. Below, we outline issues that human resource professionals are likely to face as they onboard furloughed and laid-off employees.

Onboarding Furloughed Employees

HEALTH AND WELFARE PLANS

For employees enrolled in one or more employer sponsored health and welfare plans and receiving coverage during the furlough period:

  • Payroll deductions for required employee contributions for the plan generally resume upon return from furlough, subject to any changes in employment status that may affect eligibility.
  • To the extent repayment of employee contributions advanced during the furlough period is required, consider how to collect the employee contributions (e.g., through payroll deduction or otherwise), keeping in mind state law requirements related to payroll deductions.
  • Consider the extent to which election changes may be made upon return from furlough.

For employees not enrolled in an employer-sponsored health and welfare plan during the furlough period (or enrolled in COBRA continuation coverage):

  • Determine when eligibility for the plan resumes in accordance with plan terms (e.g., immediately or after a waiting period), subject to any impact on eligibility due to changes in employment status.
  • Consider the process for enrolling employees and the extent to which election changes may be made upon return from furlough, including any HIPAA special enrollment rights.

In addition:

  • Evaluate the impact of the furlough on employees' full-time status under the Affordable Care Act's (ACA's) lookback measurement period and stability period requirements.
  • Evaluate the impact of return from furlough on participation in wellness program activities and eligibility for wellness program incentives.
  • To the extent employees will have staggered work schedules, consider entitlement to benefits based on reduced hours (full time/part time) or new job requirements and whether any plan amendments are needed.

401(K) PLANS

Generally, employee and company contributions resume upon return from furlough; however, changes in job titles or positions may affect eligibility:

  • Determine whether employee and company contributions will resume immediately upon return from furlough based on elections in place immediately before the furlough period or whether new elections will be required.
  • Determine the extent to which legally required notices relating to plan participation must be provided.
  • Address the treatment of loan repayments upon return from furlough.
  • Determine the extent to which the period of furlough must be counted for purposes of plan eligibility, vesting and the right to allocation of contributions.

PENSION PLANS

  • Consider whether changes in job titles or positions may affect eligibility for continued participation upon return from furlough.
  • Review plan terms to determine the extent to which the period of furlough must be counted for purposes of plan eligibility, vesting and benefit accrual.

OTHER BENEFITS

  • Consider the impact of return from furlough on any commuter benefits (parking and transit).
  • Consider the impact of return from furlough on vacation and holiday accrual.

Onboarding Laid-Off Employees

HEALTH AND WELFARE PLANS

  • Treat rehired employees who have been laid off as new hires who must complete new hire paperwork for health and welfare plan eligibility.
  • Consider the impact of the termination of employment and rehire on the employee's status as a full-time employee under the ACA's lookback measurement period and stability period requirements.

QUALIFIED RETIREMENT PLANS

  • Defer to plan terms and break-in-service rules for purposes of determining the impact of the layoff on plan eligibility, vesting and benefit accrual.
  • Review plan terms and procedures for enrolling rehired employees in a 401(k) plan, including application of the plan's auto-enrollment feature, if any.

SOURCE: Pepper, T. (29 July 2020) "Benefits Consideration for Onboarding Furloughed and Laid Off Employees" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/benefits-consideration-for-onboarding-furloughed-and-laid-off-employees.aspx


Benefits fair cancelled? 6 strategies for remote benefits communication

Even as states begin to reopen from COVID-19-related closures and many employees return to their places of work, employers can’t rely on past approaches to communicate benefits information during open enrollment and to educate employees about their benefits. It’s unlikely that employers will be hosting large events like benefits fairs, a staple of open enrollment in past years, soon. In addition, some employees may continue to work remotely for an extended period, which means in-person benefits communication can’t be the only strategy.

Employers can consider several alternatives to craft an open enrollment and benefits education and engagement strategy that addresses these issues. For many employers, the solution will be to combine several of these approaches to ensure they are effectively communicating important benefits information and providing employees with more than one way to learn about their benefits and get answers to any questions that may arise.

Before developing a strategy, consider surveying employees to find out how they would prefer to receive information about benefits. Some people find email or printed materials effective, others prefer videos or interactive webinars, while others may be more responsive to receiving information via text message. Once you know your employees’ preferences, you can tailor your approach to increase the likelihood that your employees will use the tools you provide and have a positive experience.

  • Recast your benefits fair as a virtual event. If you want to gather employees together and explain benefit options, how the open enrollment process will work this year and provide them with the opportunity to interact with benefit vendors, you could create a virtual event modelled on the in-person benefits fair. Depending on your organization’s size, the number of employees you need to reach, and where they are located (for example office employees, warehouse or field employees, and remote employees), your approach to hosting a virtual benefits fair will vary. A growing number of IT service vendors offer virtual event planning and execution services that include setting up the technology needed to conduct the event, handling invitations and registrations of participants, working with benefits vendors to set up virtual booths and arranging educational webinars as part of the event.
  • Use your employee intranet, portal, or app. Regardless of whether you host a virtual event, you can use your employee website, portal or app and upload all the informational and educational material employees will need to make benefit choices. This approach can also include a secure portal that employees use to complete benefits forms. Another good feature to include is a chat, which can be either live chat or a chatbot, where employees can get answers to frequently asked questions and assistance with completing open enrollment forms.
  • Host webinars. Webinars not only give you the ability to communicate information about benefits, they also give employees the chance to directly ask the HR and Benefits team questions. In addition to the live webinar, you can record the event and post it on your organization’s employee site or send a link via email so that employees who were not able to attend can still hear your message firsthand.
  • Mail printed materials home. Some employees still prefer to receive benefits and enrollment information and forms in a printed format. It can provide a resource that they can easily refer back to when making their benefits sign up decision. Mailing these materials to employees’ home addresses rather than using your business address ensures that all employees, those who have returned onsite and those who are working remotely, have access to the information they need.
  • Use texts and calendar reminders. To help employees stay on top of enrollment deadlines, send text messages and add reminders to their work calendars. Text messages can also be used to send links to more in depth information resources so employees can access information when required.
  • One-on-one support is key. Employees are bound to have more complicated or confidential questions about their benefits choices, e.g. the need for information about coverage for cancer treatment or labor and delivery. Providing one-on-one phone and chat support from the HR and Benefits team gives employees a way to get answers to questions they don’t want to ask in a more public forum such as a webinar.

A benefits plan is only valuable if employees are knowledgeable about what benefits they have and how to access them. Many of these approaches can also be used on an ongoing basis to provide education on and drive engagement with benefits so employees and employers both get the most out of their plans.

SOURCE: Varn, M. (27 July 2020) "Benefits fair cancelled? 6 strategies for remote benefits communication" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/benefits-fair-cancelled-6-strategies-for-remote-benefits-communication


When Should Managers Call HR?

When one thinks of contacting the HR department, it's often associated with filing a complaint or discussing a workplace issue that is in need of a resolution. There are often more reasons as to why the HR department needs to be contacted. Read this blog post to learn more.


Employers expect supervisors to resolve some issues on their own and to report other things to human resources—or possibly to in-house counsel—rather than to resolve them independently.

But do you know which is which? For example, you probably know that you should report to HR all complaints of unlawful discrimination, harassment or retaliation, even if:

  • The employee requests that the complaint be kept confidential.
  • The employee implores the supervisor not to consult with HR.
  • The complaint appears to lack merit.

But in other instances, the line is less clear. For example, if an employee is frequently late, it's your job to resolve the issue by confronting the employee about his lateness and handling it according to established company policies. But what happens if the chronically tardy employee responds by saying that he has been late because of chemotherapy appointments? That's the kind of information you need to report to HR so a determination can be made about whether a work accommodation is appropriate.

Here are some other clarifications of when to report in suspect categories:

WAGE COMPLAINTS

An employee complaint about not being paid as much as he deserves usually is an employee relations issue, not a legal issue. But when an employee complains that the employer has failed to pay him for time worked or has made improper deductions from his pay, savvy supervisors will see legal red flags. For nonexempt employees, improper deductions may include things like not paying for short breaks. For exempt employees, improper deductions may include deductions inconsistent with the salary basis requirement of the overtime regulations of the Fair Labor Standards Act (FLSA), such as not paying an exempt employee for a holiday when the employer is closed.

By immediately reporting a wage complaint to HR, you let the organization determine whether the complaint has merit. If no money is owed or no improper deductions made, HR can correct—or at least try to correct—the employee's misunderstanding. On the other hand, if there was a mistake, HR can correct it before the employee files a complaint with an administrative agency or court. This should go a long way toward minimizing the employer's exposure to liquidated damages for willful violations of the FLSA, and it also may mitigate an employer's liability under state wage and hour laws, whose requirements and penalties are often more stringent than federal law.

Remember, you must report even minor wage claims. A single employee's small wage loss may signal a systemic problem affecting other employees—in other words, a class action waiting to be born.

ALLEGATIONS OF WRONGDOING BY OTHERS

More and more employees are "blowing the whistle" on alleged wrongs that may not directly affect their terms and conditions of employment—alleged corporate fraud, for example. Managers should report immediately complaints of criminal or fraudulent activity, or violations of statutes such as the Sarbanes-Oxley Act. You also should report alleged violations of core employer policies that may have material legal and business consequences, such as conflict of interest policies, business ethics standards or codes of conduct.

DISCLOSURE OF MEDICAL INFORMATION

Any disclosure of a serious health condition or a physical or mental impairment by a job applicant or employee should be reported to HR—even if the applicant or employee doesn't specifically seek an accommodation. During interviews, you may ask applicants whether they can perform the essential functions of the job for which they have applied—but you may not pursue any medical inquires before making a conditional offer of employment. Likewise, where a current employee's performance or behavior is below standard, managers need to focus on the deficiencies—and not inquire or speculate as to any suspected medical reason that may underlie them.

But what if an applicant says that he cannot perform a particular function because of clinical depression, or an employee acknowledges her performance deficiencies but says that lethargy resulting from her heart condition has caused them? In these cases, even though there was no direct request, the disclosure puts the employer on notice that the applicant or employee may need an accommodation. Accordingly, the employer—that is, HR and not you—may need to begin the interactive process to determine whether a reasonable accommodation is needed.

ACCOMMODATION OR LEAVE REQUESTS

An applicant or employee need not use the legal words "Americans with Disabilities Act (ADA) accommodation" or "Family and Medical Leave Act (FMLA)" to trigger statutory rights. The key is whether a reasonable supervisor would recognize the individual's communication as a request for an accommodation or a leave of absence. With regard to accommodations, for example, you should report requests for help, support, job changes, etc. if the employee—contemporaneously or previously—has disclosed the existence of a serious health condition or impairment.

As for leave, report requests for "time off" for medical or other potential FMLA situations, even if the employee does not utter "FMLA." Even if the employee clearly is not eligible for FMLA leave, you need to report a request for time off because a leave could be a reasonable accommodation under the ADA regardless of FMLA eligibility.

EVIDENCE OF UNION ACTIVITY

If 30 percent of eligible employees in an appropriate bargaining unit sign union authorization cards, the union can petition the National Labor Relations Board for an election. Even if an employer wins the election, the victory can be very costly. The key to avoiding elections is early detection of and rapid response to union activity. But employers often begin their counteroffensive only after the union has obtained the 30 percent showing of interest. Sometimes, this is because supervisors fail to report to HR what they may see as "isolated" signs of union support. A bundle of isolated, minor occurrences may amount to evidence of a serious union campaign.

Direct signs of union activity would include an employee handing out a union flier in the parking lot or wearing a pro-union T-shirt. Indirect warning signs would include unusual off-site gatherings of employees—at barbecues, bowling alleys and bars. You also need to be aware of the restrictions on your behavior under the National Labor Relations Act. Supervisors cannot:

  • Spy on employees to see who may be engaging in union activity.
  • Promise employees benefits for refraining from union activity.
  • Interrogate employees as to whether they or others are engaging in union activity.
  • Threaten or take adverse action against employees for engaging in union activity.

While you cannot spy, you can report what you see in plain view. And while you cannot interrogate employees about their union sympathies, you can report what is volunteered or what you inadvertently overhear.

GOVERNMENT COMMUNICATIONS

Inform HR immediately if you receive any communication from a government agency, official or entity, including everything ranging from a charge of discrimination filed with the EEOC or other agency to an on-site visit from a U.S. Department of Labor investigator asking to review certain files in connection with alleged overtime pay violations of the FLSA. It's not your duty to decide whether and to what degree to cooperate. Sometimes, government officials ask for more than they are entitled to have. And even where they have a legal right to the requested information, the manner in which the employer communicates can determine the legal outcome and damages that may flow from it. If an official contacts you by phone, be polite and say, "Our organization/company will cooperate with your request; however, I do not have the authority to respond. Let me give you the name and telephone number of the HR professional with whom you should speak. I also am going to contact HR right now."

LAWYER COMMUNICATIONS

Report immediately—and don't respond—to any subpoenas or letters from lawyers who do not represent the employer. In case of "friendly calls" from lawyers who are "just curious" about a few things, don't provide any information. There is no duty to cooperate with an attorney on a fishing expedition. Instead, say something like this: "I do not have authority to talk with you. Please give me your name and number and I will forward them to HR."

SIGNS OF WORKPLACE VIOLENCE.

Not all workplace violence is preventable. But sometimes there are warning signs that supervisors need to report to HR and/or security immediately, including:

  • Discussions of or particular fascination with perpetrators or victims of violence.
  • Talk of weapons that seems abnormal in frequency or content.
  • Statements about hearing voices or receiving signals.
  • Threats of suicide.

SOURCE: Segal, J. (21 July 2020) "When Should Managers Call HR?" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/people-managers/pages/when-should-managers-call-hr.aspx