3 summer workplace legal issues and how to handle them
Issues such as hiring interns, dress code compliance and handling time off requests can cause legal issues for employers during the summer months. Continue reading this blog post for how to handle these three summer workplace legal issues.
Summer is almost here and with that comes a set of seasonal employment law issues. Top of the list for many employers includes hiring interns, dress code compliance and handling time off requests.
Here’s how employers can navigate any legal issues that may arise.
Summer interns
Employers looking to hire interns to work during the summer season or beyond should know that the U.S. Department of Labor recently changed the criteria to determine if an internship must be paid. In certain circumstances, internships are considered employment subject to federal minimum wage and overtime rules.
Under the previous primary beneficiary test, employers were required to meet all of the six criteria outlined by the DOL for determining whether interns are employees. The new seven-factor test is designed to be more flexible and does not require all factors to be met. Rather, employers are asked to determine the extent to which each factor is met. For example, how clear is it that the intern and the employer understand that the internship is unpaid, and that there is no promise of a paid job at the end of the program? The non-monetary benefits of the intern-employer relationship, such as training, are also taken into consideration.
Though no single factor is deemed determinative, a review of the whole internship program is important to ensure that an intern is not considered an employee under FLSA rules and to avoid any liabilities for misclassification claims.
Companies also should be aware of state laws that may impact internship programs. For example, California, the District of Columbia, Illinois, Maryland and New York consider interns to be employees and offer some protections under various state anti-discrimination and sexual harassment statutes.
All employers should be clear about the scope of their internship opportunities, including expectations for the relationship, anticipated duties and hours, compensation, if any, and whether an intern will become entitled to a paid job at the end of the program.
Summer dress codes
Warmer temperatures mean more casual clothing. This could mean the line between professional and casual dress in the workplace is blurred. The following are some tips when crafting a new or revisiting an existing dress code policy this summer.
If the dress code is new or being revised, the policy should be clearly communicated. Sending a reminder out to employees may be helpful in some workplaces. In all cases, the policy should be unambiguous. List examples to make sure there is no confusion about what is considered appropriate and explain the reasoning behind the policy and the consequences for any violations.
To serve their business or customer needs, companies may apply dress code policies to all employees or to specific departments. They should also make sure the dress code does not have an adverse impact on any religious groups, women, people of color or people with disabilities. Company policies may not violate state or federal anti-discrimination laws. If the policy is likely to have a disparate impact on one or more of these groups, employers should be prepared to show a legitimate business reason for the policy. Also, reasonable accommodations should be provided for employees who request one based on their protected status. For example, reasonable modifications may be required for ethnic, religious or disability reasons.
Finally, failure to consistently enforce a neutral dress code policy or provide reasonable accommodations can expose a company to potential claims. As always, dress codes and any discipline for code violations should be implemented equitably to avoid claims of discrimination.
Time off requests
Summer time tends to prompt an influx of requests for time off. Now is a good time to review policies governing time off, as well as the implementation of those policies to ensure consistency. Written time off policies should explicitly inform employees of the process for handling time off requests and help employers consistently apply the rules.
An ideal policy will explain how much time off employees receive and how that time accrues. It also will include reasonable restrictions on how time off is administered such as requiring advance approval from management, and how to handle scheduling so that business needs and staffing levels are in sync.
Most importantly, time off policies and procedures must not be discriminatory. For instance, if a policy denies time off or permits discipline for an employee who needs to be out of the office on a protected medical leave, the policy could be seen as discriminating against employees with disabilities. Companies should train their managers on how to administer time off requests in a non-discriminatory manner. Employers generally have the right to manage vacation requests, however protected leave available to employees under federal, state and local laws adds another layer of complexity that employers should consider when reviewing time off requests.
To minimize employment issues this summer and all year around: plan ahead, know the relevant employment laws and train managers and supervisors to apply HR best practices consistently throughout the organization.
SOURCE: Starkman, J.; Rochester, A. (23 May 2019) "3 summer workplace legal issues and how to handle them" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/how-employers-can-handle-summer-workplace-legal-issues
How employees really feel about asking for time off during the holidays
A new study reveals that 51 percent of employees feel uneasy about asking to use their vacation days during the holidays. Continue reading this blog post to learn more.
Are employers checking their PTO list? They may want to check it twice, according to new data, workers may be leaving vacation days on the table during the holidays because they feel uncomfortable asking for time off.
More than half of employees (51%) feel uneasy about asking to use their paid time off during the holidays, according to a new survey of more than 2,000 employees from management and technology consulting firm, West Monroe Partners. This discomfort was even more prevalent in smaller companies with smaller staffs, where employees work more closely with their managers and colleagues.
Michael Hughes, managing director at West Monroe Partners, says part of the reason employees are so nervous about asking for time off is the expectation that they have to be available 24/7. An employee may also be concerned they will appear to be slacking if aren’t in the office with many companies being short staffed to begin with, he says.
“With the war for talent, people are being asked to do more and more because either they’re shorthanded or can’t find people,” Hughes says.
Nearly two-thirds of employees working in the banking sector felt uncomfortable asking to use their PTO, according to the survey. Although Monroe Partners did not specifically review why this might be the case for banking, Hughes says he thinks that, like other service industries, bank employees often have to work during the holidays to attend to customers.
Banks were hit hard during the 2007 economic recession, he adds, and some have been cautious about beefing their workforce — forcing current employees to carry heavy workloads. But, he adds, this is fairly common across many industries.
“I think it’s something that impacts industries across the board,” he says. “[But] just based on the study banking is one that sticks out.”
West Monroe Partners recommends companies close the office on days other than just federal holidays and accommodate for remote working or flexible scheduling.
Training managers to fairly process PTO requests may also be necessary, the report notes. Managers can do a better job of having open conversations with employees around PTO and job satisfaction.
Despite worker’s anxieties, employers should communicate the importance of taking time off during the holidays, Hughes says. It’s good for workers to get time to rest, he adds. If employees are unhappy in the office, it will likely trickle down to the customer experience.
“A lot of it is just personal health,” he says. “If you give people the opportunity to recharge, they’re going to be more productive when they’re happy.”
SOURCE: Hroncich, C. (7 December 2018) "How employees really feel about asking for time off during the holidays" (Web Blog Post). Retrieved from https://www.benefitnews.com/news/how-employees-really-feel-about-asking-for-time-off-during-the-holidays?brief=00000152-14a7-d1cc-a5fa-7cffccf00000
How to Handle Employee Requests for Time Off to Vote
Do you know how to handle employee requests for time off to vote? In some states, it is a requirement to give employees time off to vote. Read this blog post to learn more.
Many employees will be eligible to cast their ballot on Nov. 6, but will they have time to vote? Some states require employers to give workers time off to vote, and even in states that don't, some businesses are finding other ways to get employees to the polls.
With Election Day around the corner, employers should be mindful that, while no federal law provides employees leave to vote, many states have enacted laws in this area, said Marilyn Clark, an attorney with Dorsey & Whitney in Minneapolis. Depending on the state, employers may have to give workers notice about their voting rights and provide paid or unpaid time off to vote.
Even in states where there is no voting leave law, it is good practice to let employees take up to two hours of paid time off to vote if there isn't enough time for the employee to vote outside of working hours. "Encouraging and not discouraging employees should be the general rule," said Robert Nobile, an attorney with Seyfarth Shaw in New York City.
Encourage Employees
"Here in the United States, too many people don't vote because they don't have time due to jobs, child care and other responsibilities," said Donna Norton, executive vice president of MomsRising, an organization of more than 1 million mothers and their families. "Getting to the polls can be especially challenging for people in rural communities [or] single-parent households, and those who are juggling multiple jobs."
About 4 in 10 eligible voters did not vote in the 2016 presidential election, according to research conducted by Nonprofit VOTE and the U.S. Elections Project. And voter turnout has been historically lower for midterm elections, such as this year's, which are held near the midpoint of a president's four-year term, according to Pew Research Center.
"Businesses can help solve this problem by making sure that all employees have paid time off to vote," Norton said.
Some employers are offering solutions by making Election Day a corporate holiday, offering a few hours of paid time off for employees to vote and giving employees information about early and absentee voting, according to TheWashington Post.
Giving employees time off to participate in civic or community activities tends to improve worker performance, said Katina Sawyer, Ph.D., an assistant professor of management at George Washington University. Employers who are offering paid time off to vote will likely reap the benefits through improved employee attitudes and performance.
Know the Law
Employers in states with voting-leave laws should be familiar with the specific requirements, as some state laws have a lot of details. Even in states without such laws on the books, employers should check to see if there are any local voting leave ordinances in their cities.
Employers required to give workers time off to vote should plan for adequate work coverage to ensure that all employees can take time off, Clark said.
In many states, the employer may ask workers to give advance notice if they need time off and may require that workers take that leave at a specific time of the workday. In some states where leave is paid, employers might have the right to ask employees to prove they actually voted. Most states prohibit employers from disciplining or firing an employee who takes time off from work to vote.
"Ultimately, fostering an environment that generally encourages employees to exercise this important right is a good practice to mitigate the risk of a potential retaliation claim," Clark said.
Although state laws vary, "the general theme across the U.S. with respect to voting laws is that employees will be given time off to vote if there is insufficient time between the time the polls open and close within the state and the time employees start and finish work," Nobile said. "Typically, two to three consecutive nonworking hours between the opening and closing of the polls is deemed sufficient."
Some state laws provide unpaid leave to vote or do not address whether the leave must be paid. Oregon and Washington no longer have voting leave laws because they are "vote-by-mail" states.
In some states, such as California and New York, employers must post notices in the workplace before Election Day to inform employees of their rights. Employers might have to pay penalties if they don't comply.
The consequences for denying employees their voting rights can be harsh, with some states even imposing criminal penalties, Clark noted.
Create a Policy
At a minimum, employers should adopt a policy spelling out the voting rights available to employees under applicable laws, Clark said. For businesses that operate in states that don't have a voting-leave law, employers may still wish to adopt a policy outlining their expectations about time off for voting.
Multistate employers may elect to adopt a single policy that includes the most employee-friendly provisions of the state and local laws that cover them. "By taking this approach, employers avoid the administrative burden of adopting and promulgating multiple policies for employees working in different locales," Clark said. All voting-leave policies should be sure to include strong anti-retaliation provisions, which make clear that the employer will not take any adverse action against employees for exercising their voting rights.
"It's important to remember that the law sets the floor," said Bryan Stillwagon, an attorney with Sherman & Howard in Atlanta. "Companies with the happiest and most-engaged employees recognize that positive morale comes from doing more than what is required."
Nagele-Piazza, L. (29 October 2018) "How to Handle Employee Request for Time Off to Vote" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/How-to-Handle-Employee-Requests-for-Time-Off-to-Vote.aspx
Dana Wilkie contributed to this article.
3 questions to ask about paid leave programs
Paid time off policies are offered by employers for numerous reasons, employee wellness being one of them. Continue reading to learn about the 3 key questions to ask about these programs and their costs.
Employers provide paid time away from work policies for a variety of reasons: to attract and retain talent (responding to employee needs and changing demographics); to be compliant with local, state and federal laws (which are proliferating); and to support general employee well-being (recognizing that time away from work improves productivity and engagement).
While offering paid absence policies delivers value to both employees and the employers, employers recognize the need to balance the amount of available time with the organization’s ability to deliver its products and services.
To help employers balance paid time away drivers, here are three key questions to ask to get a handle on the costs and benefits of paid leave.
1. Do you have a complete picture of the costs associated with your employees’ time away from work?
A challenge for many employers is getting a handle on the cost of time away from work and the related benefits. If an employer cannot quantify the costs of absence, it may not be able to define management strategies or to engage leadership to adopt new initiatives, policies or practices related to paid and unpaid time away programs.
Ninety percent of employers participating in the 2017 Aon Absence Pulse Survey reported they hadn’t yet quantified the cost of absence, and 43 percent of participants identified defining the cost of absence as a top challenge and priority. Though intuitively managers and executives recognize there is an impact when employees are absent from work, particularly when an absence is unscheduled, they struggle to develop concrete and focused strategies to address absence utilization without the ability to measure the current cost and collectively the impact of new management initiatives.
Employers struggle to quantify the cost of absence in the context of productivity loss, including replacement worker costs. According to the Bureau of Labor Statistics in 2017, employers’ cost of productivity loss associated with absenteeism was $225.8 billion, and 9.6 percent of compensation was spent on lost time benefits and overtime.
Employers are expanding their view of absence, recognizing that use of paid and unpaid time away programs are often associated with an employee’s health. As a result, combining data across health and absence programs allows an employer to recognize drivers of absence “work-related value” and define strategies to address not just how to manage the absence benefit, but to target engagement to improve well-being and the organization’s bottom-line.
As an example, musculoskeletal conditions are frequently associated with absence, which is not surprising when 11 percent of the workforce has back pain. It is noteworthy that of those with back pain, 34 percent are obese, 26 percent are hypertensive and 14 percent have mood disorders. The Integrated Benefits Institute reported in 2017 that back pain adds 2.5 days and $688 in wages to absence associated with this condition. It is this type of information pairing that provides employers with the insight to develop strategies to address comprehensive absence.
When absence and health costs are quantified, organizations quickly recognize the impact on the business’s bottom line. As the old saying goes, “we can only manage what we can measure.”
2. What is your talent strategy to improve work-life benefits, inclusive of time off to care for family?
The race for talent is on, and every industry recognizes the huge impact the changing workforce demographics currently has, and will continue to have. The current workforce incorporates five generations, though an Ernst and Young report from 2017 estimates that by 2025 millennials will make up 75 percent of the workforce. As a result, the work-life needs of millennials—and their perspectives around benefits—is driving change, including time away from work policies.
It is worth noting that, per a 2015 Ernst and Young survey, millennial households are two times more likely to have both spouses working. The Pew Research Center reported in 2013 that, among all workers, 47 percent of adults who have a parent 65 years or older are raising a minor child or supporting a grown child. Additionally, a 2016 report from the Center for Work Life Law at the University of California Hastings claimed that 50 percent of all employees expect to provide elder care in the next five years.
In response, employers are expanding paid time off programs for care of family members. The paid family leave continuum often begins with a paid parental policy providing time to bond with a new birth or adoption placement. An elder care policy may follow, and the culmination might be a family care policy covering events like those under the job-protected Family Medical Leave Act. An Aon SpecSelect Survey reported that 94 percent of employers offer some form of paid parental leave in 2017; this is a significant change from 2016 when 62 percent offered this benefit. Two weeks of 100 percent paid parental leave was the norm per Aon’s SpecSelect 2016 Survey, but we are finding that many employers are expanding these programs, offering between 4 to 12 weeks.
Offering paid leave programs on their own may meet immediate needs for both time and financial support, but may be incomplete to help the employee address the full spectrum of issues that could affect success at work. In combination with family care needs—even those associated with a happy event such as a birth—there may be other health, social or financial issues. Employers combining their paid leave programs with a broader well-being strategy deliver greater value, improve engagement and increase productivity.
3. If you’re a multi-state employer, how are you ensuring your sick and family leave policies are compliant across all relevant jurisdictions?
Paid leave is a hot legislative topic lately. Last December saw the enactment of a paid FMLA tax credit pilot program as part of the federal Tax Reform The paid sick leave law club now totals 42 states and myriad municipalities. Both Washington state and Washington, D.C. are ramping up to implement paid family leave laws in 2020, joining the four states and one city that already have some form of paid family or parental leave law.
How are multi-state employers keeping up with this high-stakes evolving environment? The 2017 Pulse Survey saw 70 percent of employers report they are aware they have an employee who is subject to a paid sick leave law. Ten percent of respondents said they did not know if they had anyone subject to such a law. If knowledge is the first step in the process of compliance, deciding on a compliance strategy and then successfully implementing it are surely steps two and three.
With respect to paid sick leave, there are three major compliance options: comply on a jurisdiction-by-jurisdiction level, with as many as 42 different designs and no design more generous than it has to be; comply on a national level with one, most generous design, or meet somewhere in the middle, perhaps with one design for each state where a state- or local-level law is in place, or by grouping jurisdictions with similar designs together to strike a balance between being overly generous and being bogged down by dozens of administrative schemes.
Data analytics can be a key driver in designing a successful compliance strategy—compare your employee census to locations with paid sick leave laws. The ability to track and report on available leave is a requirement in all jurisdictions, and at this point, few if any third-party vendors are administering multi-state paid sick leave.
For paid family leave, the primary policy design issue is how an employer’s FMLA, maternity leave and short-term disability benefits will interact with the various paid family leave laws. So, while there may be fewer employer choices to be made with statutory paid family leave, clear employee communications will be critical to success.
Employers may tackle time away from work program issues individually to meet an immediate need, or collectively as a comprehensive strategy. Such a strategy would include data analytics across health and lost-time programs, absence policies that meet today’s needs for the employer and employee, health and wellness programs targeting modifiable health behaviors, and absence program administration that is aligned to operational goals. The expected outcome for time away from work programs isn’t about the programs themselves: it is about an engaged, productive workforce who delivers superior products/services. How do your programs stack up?
SOURCE:
VanderWerf, S and Arnedt, R (13 July 2018) "3 questions to ask about paid leave programs" [Web Blog Post]. Retrieved from https://www.benefitspro.com/2018/07/05/3-questions-to-ask-about-paid-leave-programs/
