No, federal law requires you to pay employees for all hours they have worked. While you can and should have a policy defining job abandonment (e.g., if an employee no-shows and no-calls three days in a row, you’ll take that as a resignation), you are not allowed to deduct or withhold pay because an employee quits without notice.
Finally, if you allow your exempt employees flexibility with their schedules, allow the same for the non-exempt employees when possible. Time tracking doesn’t have to mean rigid schedules or micro-managing, and for those who have been reclassified because of the new rules, maintaining a perk like scheduling flexibility can help keep morale high.
Have you reviewed your policies and practices in light of the upcoming overtime changes?
Reclassified employees may have to follow procedures and policies that didn’t apply to them before—or that you didn’t have. Changing habits can be a challenge, but changing those of your formerly exempt employees with respect to hours worked and tracked is critical to preventing wage and hour violations.
Newly non-exempt employees are likely used to “running the clock” after hours. They may be in the habit of responding to work email, finishing up projects, taking client calls, or engaging in other work tasks during non-work hours. It’s therefore advisable that your policies are clear about expectations and the organization’s commitment to recording all time worked by nonexempt employees.
Timekeeping
Consider that your previously exempt employees may not be familiar with your timekeeping procedures, such as tracking time to check emails and turning in recorded work time for each pay period. Review these procedures with them, keeping in mind that non-exempt employees must be paid for all time they are “suffered or permitted” to work. This doesn’t just mean time in the office, but all time, whether it’s approved by the employer or not.
Off-the-Clock Work
As mentioned above, all hours worked by a non-exempt employee must be recorded and compensated, even those performed outside of the employee’s standard shift. Therefore, it’s critical to have a policy in place that informs employees that all time worked must be tracked, that off-the-clock work is prohibited, and that employees may be disciplined for not following their scheduled shift. Please note that refusing to pay for unauthorized time worked—whether it’s regular or overtime—is not permissible.
Employees Using Their Personal Electronic Devices
Time a non-exempt employee spends doing work from their smartphone, tablet, or personal computer is considered time worked, and employees may find this hard to resist if their phone is chirping at them from their pocket every time a new work email comes in. For this reason, you may want to prohibit a non-exempt employee from using their personal devices for work purposes at all, or only allow such use upon authorization from the company. For instance, if you’d like a particular employees to check and respond to work email over the weekend, build that time into their weekly schedule so it doesn’t lead to unexpected overtime.
Meal and Rest Period
Many states require meal and/or break periods for non-exempt employees. It’s important to inform employees of these breaks, explain the procedures for clocking in and out, and remind them that no work should be performed during this time.
This is an area where it will be particularly important for your managers to be willing to manage. Employees who previously worked through lunch at their desk and could put in their eight hours between 9 and 5 might not want to take an unpaid lunch period or break, thus extending their workday. State law, however, may be indifferent to their feelings. If employees ask to waive their meal or rest periods, you’ll want to check the Break and Rest Period pages under State Laws in the HR Support Center. Sometimes these breaks can be waived, but sometimes they cannot. And waiving them sometimes requires special circumstances and agreements between employers and employees.
Again, if work is performed, it must be compensated (and penalties may apply), so the policy should include instructions for notifying a manager or supervisor if a working meal period occurs.
Overtime
Now is the time to ensure that you’re familiar with your state and local overtime laws. Although most employers will only be subject to the federal requirement to pay time and one-half for hours worked over 40 in one workweek, Alaska, California, Colorado, and Nevada each have daily overtime provisions, and Massachusetts and Rhode Island require some employers to pay a premium for work on Sundays and certain holidays. Employees and managers need to be aware of the rules for compliance. And you should make sure that your own expectations for overtime work are written in your policy and communicated to your employees.
Travel Time
Since non-exempt employees must be paid for all time worked, you may need to consider travel time for those customarily engaged in work travel. There are a few narrow exceptions when travel time isn’t payable (e.g. when the employee is a passenger in a vehicle outside of regular work hours or during a standard morning/evening commute), but it’s good to assess your non-exempt employees’ travel schedules to ensure proper pay.
Payroll Changes
Incentive pay: Per FLSA requirements, overtime must be calculated weekly based on the employee’s “regular rate of pay.” Incentive pay (non-discretionary bonuses, commissions, or any other non-hourly pay) is included in the regular rate of pay calculation. For weeks in which a non-exempt employee earns both overtime and incentive pay—whether provided at the time or retroactively—you must calculate (or recalculate) the employee’s regular rate of pay so that it includes both their base pay and incentive pay for the week. The new amount should then be used for overtime calculations.
Workweek: Every company must have an established workweek that is not adjusted or altered to avoid overtime. This is the 168-hour period during which you will track each employee’s hours to determine their pay and if they are owed overtime, e.g. Sunday at 12:00 am through Saturday at midnight. Each workweek is assessed individually for overtime calculations, and overtime must be paid for each workweek in which it is earned. Payroll, managers, and employees should know what the set workweek is.
Next Steps
If these policies and practices aren’t currently covered in your employee handbook, we recommend adding them now, or distributing them separately as handbook amendments. Once distributed, employees should sign-off to acknowledge their acceptance and understanding of these important policies. If your policies and practices are already covered in your handbook, reemphasize them with the newly reclassified employees.
What are the new minimum salary levels, and when will they go up next?
Under the rule, exempt executive, professional, administrative, and computer employees must be paid at least $684 per week ($35,538 annual), on a salary basis.
Employees who are exempt under the Highly Compensated Employee (HCE) exemption would need to be paid at least $107,432 per year. The HCE exemption is an option available for employees who don’t meet the full duties test to be an exempt executive, administrative, or professional employee, but are allowed to be classified as exempt because they are paid very well. However, this classification is not allowed in a number of states, including California, Oregon, and Washington. Most employers will never use this exemption.
Can a part-time employee be exempt?
The salary threshold does not fluctuate based on the number of hours worked by an employee. They also must be paid on a salary basis, meaning their pay doesn’t fluctuate based on number of hours worked or the quantity or quality of their work. Finally, they must also pass the duties test for at least one of the FLSA’s exemption categories.
What’s the difference between a non-discretionary and discretionary bonus?
The FLSA defines non-discretionary bonuses as those that are announced to employees to encourage them to work more steadily, rapidly or efficiently, and bonuses designed to encourage employees to remain with an organization. If there is an established set of criteria that an employee must meet, and the bonus is guaranteed to be earned once those criteria are met, the bonus will be considered non-discretionary. All non-discretionary bonuses must be included in the regular rate of pay and will impact the overtime rate when they are issued in the same workweek in which overtime is earned.
Discretionary bonuses, however, may be excluded from the regular rate of pay and overtime calculations. A discretionary bonus can be given to an employee for any reason or no reason at all. Generally, they’re given out of appreciation, loyalty, or good service. While employees may have a sense that they might get such a bonus, they are neither announced nor guaranteed to employees ahead of time.
Can non-discretionary bonuses and commissions count towards the minimum salary threshold?
Under the proposed rule, non-discretionary bonuses, incentive payments, and commissions (collectively, “incentive pay”) may account for up to 10% of the total for executive, administrative, professional, and computer employees, so long as they are paid out on at least an annual basis. Incentive pay can account for the difference between $35,568 per year and the total pay of someone exempt as an HCE, but may not cause a reduction in their $684 per week that is paid on a salary or fee basis.
Does this change even apply to me?
Almost certainly. There are two ways in which employees can be covered by the FLSA. One or both will apply to almost every employee in the country.
The first kind of coverage is called “enterprise coverage.” This applies when an employee works for an employer who has an annual dollar volume of cash sales or business done of $500,000 or more. It also applies if the employer is a hospital, business providing medical or nursing care for residents, school or preschool, or government agency, regardless of the amount of sales or business done.
The second type of cover is called “individual coverage.” Even when there is no enterprise coverage, the FLSA will cover individuals engaged in interstate commerce. If an employee places telephone calls to another state, sends or receives out-of-state shipments, processes credit cards, debit cards, or personal checks, or partakes in any number of other basic business activities, they will qualify for individual coverage.
That said, California and New York (and soon Washington) already have laws in place that make the minimum salary for exempt white collar employees higher than these proposed thresholds. As employers must follow the law that is more beneficial to employees, the new proposed federal minimums would not affect employers in these states.
Sexual harassment compliance training is generally not HR professionals’ favorite thing. There is a lot of gray area in terms of what constitutes harassment. This gray area makes it difficult to distinguish whether something is sexual harassment or not, and creates a challenge for bystanders who have witnessed an iffy situation to know if they should or should not report of the situation.
There is a high chance that your employees have or will encounter an iffy situation. Providing them with clear and thorough training will help them to better distinguish a sexual harassment scenario and will increase their knowledge on how to correctly respond.
To maximize the impact of your company’s sexual harassment training, consider these 4 tips:
From new hires to company executives, ensure each employee completes a thorough sexual harassment compliance training program. Mandatory training sends a message that all employees, despite their titles, are expected to represent themselves and their company in a way that is considerate and respectable. A lack of support from company leaders sets a poor example and generates a negative impact on the importance of training for the rest of the office. When factoring in schedules and company budget, utilize different training methods. Smaller group training sessions help employees to feel more comfortable asking questions and are more willing to participate in group discussions. Virtual training is another alternative but should have an interactive component like instructor-led live training sessions.
You cannot expect your employees to read and memorize the company’s sexual harassment policies. Create an ongoing and interactive training experience with customized character-driven situations that resonate with your workplace. Show your employees workplace scenarios similar to what they’ve been dealing with in their workplace. Employees will start to see what could really happen to them personally as well as what may have happened to the company from a legal position. Discuss real-world topics such as hugs, jokes, dating in the workplace, alcohol at work-related events, and off-site and after-hours activities.
Do you allow inappropriate comments? Do you allow cursing? On-site drinking? Allowing this behavior creates an inappropriate environment. An inappropriate environment is usually what sparks sexual harassment. Harassment can range from extreme forms such as violence, threats, or physical touching to less obvious actions like teasing, mocking, or repeatedly bothering coworkers or refusing to talk to them. It can be based on a person’s race, ethnicity, religion or gender. Establish an Open-Door Policy for your employees to anonymously ask questions, get answers, and share experiences through a hotline, specific human resource person or email address, or outside party.
Don’t limit sexual harassment training to a one-time event. It is important to have awareness campaigns periodically throughout the year. Provide tools like relevant brochures, helpful websites and blog links, videos and webinars to help employees identify and report improper behavior in the future. Hang anti-sexual harassment posters on notice boards in common work areas and send out emails reinforcing what was taught during training. Give employees a clear and concise outline your sexual harassment policy, reporting and investigation process, and penalties for non-compliance. When your company does health and safety surveys, collect data about sexual harassment and abuse. Analyze the data and reevaluate your training methods for the next time you have a sexual harassment training. Periodically conduct workplace audits to monitor any incidences of sexual harassment.
We need to shift away from explaining what sexual harassment is and drift towards creating a culture of respect and civility. We need to shift away from explaining how to avoid situations in which harassment can be questioned and towards ways to encourage trust. For more information on how Highflyer HR can provide effective sexual harassment training solutions, Contact us at (844) 398-7800 or getstarted@highflyerhr.com.
The Affordable Care Act (ACA) employer mandates and deadlines are putting plenty of fear, worry and doubt into those who must comply with reporting requirements. Applicable Large Employers (ALEs) should be especially aware of their ACA obligations to employees and the IRS.
Since the ACA became a law, the IRS has managed over 40 provisions regarding implementation of ACA.
Perhaps the most pressing from an employer’s viewpoint is play or pay. Large employers (50+ FTEs) who do not offer coverage for all of their full-time employees, offer unaffordable minimum essential coverage or offer plans with high out-of-pocket costs could face tax penalties.
The employer would also be subject to a tax penalty if there is at least one full-time employee certified as having purchased health insurance through an exchange and was eligible for a tax credit or subsidy.
Employer fines imposed for ACA noncompliance are referred to as employer shared responsibility payments. The full details of who will have to pay, how much to pay and under what circumstances is pretty complicated, but rest assured those fines can be substantial. The IRS official Q&A about this contained 56 entries when it was updated as of May 20, 2015.
ALEs should have been recording and compiling detailed, monthly information as of January 1, 2015, in order to meet filing requirements. Some required data includes:
Required reporting will be done via four IRS forms:
ALEs will file Forms 1094-C and 1095-C, while the coverage provider or self-insured plan sponsor has the legal obligation to furnish forms 1094-B and 1095-B to the plan participants.
Full-time equivalent (FTE) employees must receive their completed forms by February 1, 2016 (due to January 31 falling on Sunday). The paper reporting forms filed with the IRS must be sent in by February 29 (due to leap year) or March 31 for electronic filing. Employers should already be implementing a solution that can manage ACA data and report compliance.
The challenges of ACA compliance can be met with the right solution that manages employee data, time and attendance, HR, payroll, and benefits so an employer is able to quickly review data. If you use outside assistance, make sure they provide a defined project plan to ensure your compliance.
The bottom line? Be ready – you have to comply!
