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2564-2022)
9 Compliance mistakes You may not know You're making: part i Ensuring workplace compliance
- Brett Farmiloe, Founder and CEO – and currently CHRO - Terkel.io
11 Don’t Forget About The Employee Side Of Pay Transparency
It’s time to reset the relationship with your employees
- Nancy Romanyshyn, Director, Pay Strategy and Partner Success, Syndio
16 Straight Talk with HR.com
‘Collaboration Between Payroll And HR teams Can Help Mitigate Compliance Issues’
- Exclusive interview with Emily Hann, People and Culture Manager, Leadpages
24 Straight Talk with HR.com
DOL’s New Proposed Rule For Independent Contractors: What Employers Must Know
- EExclusive interview with Erica Mason, Partner, Labor and Employment Practice, Akerman LLP
71 Inexperienced Managers And Poor Training: A Recipe For Disaster Managers should receive training in the federal and state laws that apply to the company’s business
- Paul O. Lopez, Director and COO, and Jennifer H. Wahba, Associate, Tripp Scott
What does this law mean for employers?
- Emily Scace, Legal Editor, XpertHR
“When you’re 30 you’re old enough to know better, but young enough to go and do it.”
Bridget Bardot
- Marti Cardi, Vice President – Product Compliance, Matrix Absence Management
state of legal, Compliance and employment law,
Learn how the new laws would impact recruitment
- Sandy Kaminski, Vice President, Client Development, Vensure
Hurricanes, Wildfires, And Floods, Oh My!
How to put emergency action plans in place for dealing with natural disasters and other emergencies
- Linda Bond Edwards, Partner, RumbergerKirk
Best practices for negotiating a resolution
- Patti Bartis, Amanda Williams and Zack Anstett, Employment Attorneys, Parker Poe
The U.S. can benefit tremendously by allowing talented immigrants to stay
- Sasha Ramani, Head, Corporate Strategy, MPOWER Financing
This monthly interactive learning experience showcases solutions to deal with the latest legal and compliance issues facing corporations and legal departments.
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Deepa Damodaran Editor, HR Legal & Compliance Excellence
HR compliance continues to be crucial. The uncertainty brought forth by changing labor laws and regulations often makes it difficult for many organizations to efficiently manage compliance.
From failure to follow up on investigations to not adapting risk management and other policies to remote or hybrid work, there are several things that you may need to check about workplace compliance to see where you may be making mistakes without knowing. In this edition, we bring you articles and interviews from legal and compliance experts, and an exclusive research report, and hope, these would answer all your queries about how to stay compliant in the uncertain world of work.
No matter how you look at it, pay transparency laws are already changing the way U.S.-based companies do business. However, despite recent regulatory advancements, nearly one-third of employers still say they are not ready for such transparency. Check out Vensure’s Sandy Kaminski’s How
To Adjust To New Pay Transparency Laws Today to understand what you need to do to ensure compliance in the workplace.
Also, check out the exclusive interview with Emily Hann, People and Culture Manager, of Leadpages, ‘Collaboration Between Payroll And HR teams Can Help Mitigate Compliance Issues’, where she touches upon the areas of regulatory compliance that are of the highest concern, how she maintains an up-to-date understanding of all employment-related compliance laws and regulations, and more.
Featured on the cover, this month, is Terkel.io Brett Farmiloe’s article, where he lists down the top 9 Compliance Mistakes You May Not Know You’re Making.
Also, featured in this edition is an exclusive research report that will help you understand why many organizations struggle, and how the best ones succeed, when it comes to workplace compliance.
This is not all! This issue of HR Legal & Compliance Excellence also focuses on other legal aspects and highlights that should help you keep your workforce healthy, safe and secured.
Happy Reading!
In a world of unparalleled challenges (global pandemic, racial injustice, political rivalry, digital 4.0, emotional malaise), uncertainty reigns. Finding opportunity in this context requires harnessing uncertainty and harnessing starts with reliable, valid, timely, and useful information. The Excellence publications are a superb source of such information. The authors provide insights with impact that will guide thought and action.
Rensis Likert Professor, Ross School of Business, University of Michigan Partner, The RBL Group
Excellence publications are my ‘go-to’ resource for contemporary and actionable information to improve leadership, engagement, results, and retention. Each edition offers rich and diverse perspectives for improving the employee experience and the workplace in general.
Julie Winkle Giulioni
Author, Virtual /Live Keynote Presenter, Inc.’s Top 100 Leadership Speakers
I regularly read and contribute to Leadership Excellence and Talent Management Excellence. I use many of the articles I read to augment my own presentations and I often share the articles with my clients. They are always quick, right on target for the latest issues in my field, and appreciated by my clients. If you want to stay up to date on the latest HR trends, choose a few of the different issues from the Excellence series of publications.
Dave Ulrich
Dr. Beverly Kaye CEO, BevKaye&Co.
HR leaders, what is one workplace compliance mistake that you (or others) may not know you arre making? How can this be avoided?
To help you identify or avoid workplace compliance mistakes you may be making unknowingly, we asked HR managers and business leaders this question for their best insights. From failure to follow up on investigations to not adapting risk management and other policies to remote or hybrid work, there are several things that you may need to check about workplace compliance to see where you may be making mistakes without knowing.
Here are 9 compliance mistakes these leaders are mindful of in their workplaces:
● Failure to Follow Up on Investigations
● Delayed or Improper Conflict Resolution
● Not Properly Applying The Americans With Disabilities Act
● Losing Track of Overtime Exemptions
● Failing to Properly Document Employee Training
● Not Being as Current with Employment Laws as You Should
● Not Keeping Contracts for Independent Contractors Updated
● Not Being Up-to-Date with Safety Regulations
● Failure to Properly Document Standards and Procedures
One of the most common mistakes is failing to follow up on investigations that were completed. This can result in fines and penalties being issued, and workers feeling frustrated and confused about what happened. The best way to avoid this is to keep track of all investigations. It is important for HR leaders to keep track of all investigations so they know when it is safe to end a case or take additional action.
Paw Vej, Chief Operating Officer, Financer.comThe Americans with Disabilities Act and state laws require employers to make accommodations for employees with disabilities as long as it does not impose “undue hardship” on business operations. HR must deeply understand that definition to ensure that where they draw the line for undue hardship would be considered fair in a court of law. HR also needs to be mindful that just because they can ’no accommodate an employee with a disability somewhere, they can ’no wash their hands of the issue until they have tried to find another reasonable solution. HR must work to identify another accommodation for them wherever possible or risk entering non-compliance.
One of the most crucial roles of HR is to handle issues around workplace violence, harassment, discrimination, and other forms of interpersonal conflict. Therefore, HR teams need to be well-versed in conflict management and understand precisely where their legal obligations lie to protect their team and deal with the issue safely. If an HR employee fails to address the issue, delays their response, or is unequipped with the skills to deal with it, your business will be exposed to potential lawsuits. All HR employees must stay up-to-date with conflict protocol training and pass those protocols on to team managers. If an employee comes to a manager with an issue and they do not know their required next steps, you leave your business and employees at risk. Similarly, busy HR teams must drop other issues to deal with these immediately to avoid unnecessary delays and ensure their team’s safety above all else.
Jeffrey Zhou, Co-Founder and CEO, Fig Loans
Marina Vaamonde, Real Estate Investor & Founder, HouseCashin
Especially in smaller teams where HR can be less defined or is run by one person, it can be easy to lose track of which employees are exempt from overtime. Overtime has such specific outlines depending on pay rate, hourly vs salaried employees, and they are all outlined in black and white by the Department of Labor. Simply familiarizing yourself with these specifications puts you in a good position to be in compliance, but informing management and the employees themselves about their status can help too. If an employee knows from the start they are eligible for overtime, they can usually flag a mistake faster than HR or management. This does not hoist the accountability onto the employee, rather adds transparency to the compensation expectations on all sides.
Gates Little, President/CEO, altLINE Sobanco
One compliance mistake that HR leaders may not know they are making is failing to properly document employee training. Employee training is crucial for ensuring that employees are familiar with company policies and procedures. However, if training is not properly documented, it can create potential liability issues for the company. To avoid this mistake, HR leaders should make sure to keep a detailed record of all employee training, including the date, time, and location of the training, as well as the names of all employees who attended. By taking these simple steps, HR leaders can help to protect their companies from compliance risks.
Jim Campbell, Founder, Wizve Digital Marketing
Do not make the mistake of thinking you are current. Just because you researched new laws and regulations two years ago does not mean those are the same today. A mistake that too many HR leaders (actually, just leaders in general) make is thinking they are current with employment laws, when in fact, those laws changed and they are now non-compliant. For example, over the last few years, agencies have grown tremendously, and with them, their employment laws have grown, as well. HR leaders now have to be up-todate with new workplace safety and health laws, sick leave policies, overtime pay laws, anti-discrimination and anti-harassment laws, and employee privacy laws. If you break any of these laws, that is your company’s reputation down the drain. So as an HR leader, do not make the mistake of thinking you are current because two years ago you brought your company up-tospeed. You need to be proactive and stay on top of the expanding and ever-evolving laws. Karim Hachem, VP of eCommerce, Sunshine79
As an experienced HR professional turned team leader, I understand that updating contracts for long-term independent contractors can get lost in the muck at times. Especially in small startups, the informality of vague contracts or indefinite agreements can be commonplace mistakes that actually leave your company and your freelancers vulnerable. If you have faced massive growth in the last year or two, it is time to revise all of these contracts ASAP. Ideally, get a lawyer involved to make everything airtight, clear and consistent. It is a pain to get everyone new contracts, but keeping them up to date and relevant as you grow will be less hassle than dealing with lawsuits, disputes and fines down the road.
Volodymyr Shchegel, VP of Engineering, Clario
The more hazardous the job the more regulations are generally needed to keep everyone safe. There can be a lot of rules that need to be followed, and it is not unusual for some safety measures to slip between the cracks. As if that was not enough, regulations can change year to year, as new measures are implemented to match the needs of workers and businesses. This can mean that the regulations that you were compliant with last month may no longer be valid. It is in a company’s best interest to check its safety regulations, and ensure they are regularly up to date and followed to the letter. While it can be a meticulous affair, it is much better than any potential workplace accidents that might come from being illprepared.
One of the most common workplace compliance mistakes is failing to properly document standards and procedures. This can lead to confusion and chaos in the workplace, as everyone trying to keep up with the ever-changing rules may feel like they are working in a minefield. Not only does this make it difficult for employees who need clarity about their rights and obligations, but it also creates an environment that is susceptible to lawsuits. To avoid this, it is important to always have written policies and concise documentation that clearly outlines what workers are required or permitted to do. Clarify expectations at all times so there are no surprises later on down the road. Additionally, HR leaders should be prepared to recertify employee understanding of policy on a regular basis. This will help ensure compliance with relevant legal requirements and continued trust between management and staff members.
Johannes Larsson, Founder and CEO, Joha
Brett Farmiloe is the Founder and CEO – and currently CHRO - of Terkel. io. Brett is an SHRM Influnecer and has also been a keynote speaker at several state SHRM conferences around the topic of employee engagement.
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Soji James, 1AND1 Life Expert Certified Personal Trainer, 1AND1 Life
The trends are apparent. Trust is fractured between many employers and their employees. The post-Labor Day push to the office is causing tension. Home-grown union organizing driven by college-edu cated workers is on the rise. And then there’s all the ‘quiet’ things - the quitting, the firing, the managing.
Borrowing from Jim Harter, chief scientist for Gallup’s workplace management practice: “What we’re seeing
right now is kind of a deterioration of the employeeemployer relationship.”
All in all, communication is broken.
State and municipal pay transparency legislation, once enacted, will give 1/3 of employees across the country the tools they need to have the voice they have been after. Employers can thoughtfully leverage this wave of
it’s time to reset the relationship with your employees
legislation as a way to start the conversation that will lead to greater trust between employees and employers.
By actively posting pay ranges, employers can use this as a starting point for candid discussions with their employees about how they value their work and the why behind it. In preparing to do so, HR teams must be ready with a clear point of view as to why people are paid what they are paid. To get it right, the best teams are:
1. leaning on analytics to understand the Current state of How their Compensation programs are working.
1. Are they working effectively that is in alignment with the company’s pay philosophy?
Are people paid similarly when accounting for the same type of work, skills, and performance? And without regard to gender, race, or ethnicity? Conduct pay equity analyses to ensure you are paying employees fairly.
2. Are employees’ salaries aligned with pay ranges? Examine pay relative to ranges and flag outliers and discrepancies. Refresh salary ranges to ensure what you are posting is in line with what you are paying employees, and identify employees in need of adjustments (ideally, in time for merit increases).
With a clear sense of the current state of your compensation programs, you can speak authentically to all stakeholders - leaders, people managers, and employees - about how work is valued and the intention of your rewards programs. Clear and honest communication is key, including:
● The definitions in your pay philosophy, for example, what you consider “competitive” and your “market.” Employees have the information to research their salaries, so expect them to. Engage them in a discussion of how you designed your pay programs and how pay is analyzed and determined. Employees do not expect to be the highest-paid, but they expect to
be paid in line with people doing similar jobs in similar companies in similar locations.
● Clear definitions of how they can grow, with guardrails on promotions and the process for posting open positions that put them, not external employees, at the advantage. At Syndio, our team values the opportunity for growth and development, so we make sure opportunities are shared with internal team members first before they are shared externally. All opportunities for internal movement are shared with the company at our all-hands meetings and are then posted to our job board.
● Where there are disconnects you are correcting. Think of this as an opportunity to reset the employer-employee relationship. While it may be uncomfortable, your employees already know that your company is not perfect. You will build trust if you share that you are committed to doing the work to analyze, monitor and correct issues that may surface. Further, you can outline what you are doing to prevent issues from happening in the first place.
● Providing opportunities for feedback from employees. Build a feedback loop at several levels, including people managers and employees, and make a commitment to report back on what you hear. This will help you to both address issues and as well as demonstrate the progress you are making in correcting them. It will also make your communications better over
time as you learn more about what employees hear and how best to help them internalize the messages you want them to.
● Preparing people managers to have more in-depth conversations with employees. Train people managers to not only be ready and able to answer questions, but to initiate frequent discussions with their teams. Pay is dynamic, and employees will have questions more frequently than in the review cycle. Training managers so they can answer questions and coach their teams is essential. A manager, who collaborates with employees to help them be successful - rather than directing their questions to HR - will create a more trusting relationship with them.
Leaning into this wave of increasing transparency, you can use this as a moment to build trust rather than break it down through avoidance and secrecy. Educating employees about their pay, where they are in comparison to the market, why, and how they can get to the next level will create a more collaborative environment.
You will demonstrate that their success is viewed as the company’s success. By approaching this proactively and openly, you will be taking a step toward repairing fractured trust.
Nancy Romanyshyn is the Director of Pay Strategy and Partner Success, at Syndio. Nancy is a fair pay thought leader, speaker, and compensation expert. With 25+ years of experience, both in-house and leading compensation design engagements, she joined Syndio from Willis Towers Watson where she led their North America Fair Pay team.
No matter how you look at it, pay transparency laws are already changing the way U.S.-based companies do business. However, despite recent regulatory advancements, nearly one-third of employers still say they are not ready for such transparency. That is a problem.
California, for example, is one of the first states to make a major move regarding pay transparency. On September 27, 2022, Governor Gavin Newsom signed California’s Pay Transparency for Pay Equity Act (SB 1162) into law.
Beginning on January 1, 2023, the new law requires employers with 15 or more employees to include the
salary or hourly wage range for all posted positions. This is a massive change that will affect the opera tions of companies throughout the state, and more states are looking to roll out this type of legislation in the near future.
Businesses have a choice: prepare today and get ahead of the curve to start attracting more highquality recruits and keep top talent, or be on the back foot once these laws are put into practice across the country. Either way, pay transparency laws are going to make a major impact on recruitment.
Before we dive into the finer details, it is important to note that pay transparency laws affect both candi dates and existing employees.
With a pay transparency law in place, the hiring pro cess will look and feel different for both employers and candidates. Job advertisements, for example, will have to include salary data.
Job candidates will benefit from this data, as it helps them decide which positions to apply for and how to negotiate. Conversely, employers are faced with two unique challenges:
learn how the new laws would impact recruitment
● Disclosing how much they are willing to pay a candidate could reduce their negotiating power.
● Revealing salary ranges could upset existing employees who do not earn as much, leading to higher turnover.
Thus, the impact on both employers and candidates is far-reaching and requires proactive preparation from businesses to ensure employee salaries reflect their value, role and tenure appropriately.
From an employer perspective, pay transparency laws are a cue to review internal policies and the pay of cur rent employees. You are likely to find that pay equity issues and/or policies need to be revised to ensure that fair and equitable practices are in place.
The overall impact on business operations depends largely on the level of pay equity and transparency in place before the new law goes into effect. For in stance, if a company has always had full pay transpar ency, this legislation isn’t likely to impact operations. However, if a company has neglected to embrace full transparency to date, it may be necessary to take a broader look at salaries throughout the company and start aligning them today.
At first glance, a new pay transparency law in your state is scary. You assume the worst, but that is not necessarily the right outlook. There are many ways to use it to your advantage.
To start, use this as an opportunity to implement a “full transparency model” within your organization. It is a market differentiator when done correctly because many companies are hesitant to make this change proactively. Set your business apart by being an early adopter.
Plus, it is a misconception that full pay transparency builds resentment between employees, increases turnover, and negatively impacts morale. Sure, this can be true, but there is a better chance that doing it right will:
● Make pay gaps a thing of the past and promote equality
● Motivate employees to perform their best to reach the next pay grade
● Eliminate time-consuming and stressful salary negotiations
To take full advantage of this opportunity, you must be clear about your goals upfront. Address the issue head-on to create an internal policy that not only meets regulatory requirements, but also reflects the best interest of both candidates and existing employ ees.
Example goals include a policy that takes a stance for equity and inclusion; an attempt to boost employee morale; a mission to attract the best candidates; and/ or a reduction in employee turnover rate.
Even if pay transparency laws have not affected your company yet, there is a good chance they will in the very near future. Many states (and cities) have already moved in this direction, with the rest likely to follow closely behind.
The ability of your organization to successfully comply with new pay transparency laws is critical to its longterm viability. Don’t wait until the last minute to make the necessary changes to your internal policies and day-to-day operations.
As the Vice President of Client Develop ment for Vensure, Sandy Kaminski has more than 20 years of experience work ing in human resources. She has worked for professional employer organizations (PEO) and human resource outsourc ing (HRO) divisions for the bulk of her career. Sandy has managed all aspects of PEO and HRO solutions for a diverse array of industries, and was the owner/ founder of a human resources consult ing firm that specialized in strategic HR.
In a perfect world, having more of a streamlined and blanketed approach to family and medi cal leave laws across all states would likely ease the difficulties for employers to ensure they are complying. This is especially true for employers with teams in multiple states, with varying fam ily and medical leave laws,” notes Emily Hann, People and Culture Manager, at Leadpages.
In an exclusive interview with HR.com, Emily touches upon the areas of regulatory compliance that are of the highest concern to her, how she maintains an up-to-date understanding of all employment-related compliance laws and regulations, and more.
Excerpts from the interview:
How do you maintain an up-to-date understanding of all employment-related compli ance laws and regulations?
Emily Hann: It can be difficult keeping up with all the employ ment-related compliance laws and legislation. HR leaders need to maintain sound knowledge of federal legislation, while also keep ing a close eye on the state and local statutes that affect each location that your organization employs in. These can vary greatly from one state to another. What has worked for our team is to take a variety of approaches and maintain consistency across these approaches.
First, attend webinars that focus on employment legislation, which you can often find facilitated by employment law firms, HR associations or government entities.
Subscribing to multiple sites and publications that provide you with on-the-spot updates on compliance-related topics is crucial to maintaining a current pulse on the legal landscape. Some ex amples of online publications that I subscribe to for employment
Q.
compliance updates include SHRM, the Department of Labor, the U.S. Equal Employment Opportunity Com mission, and Occupational Safety and Health Admin istration.
I recommend making it a priority to schedule time into your calendar each week to review all your publication headlines and newsletter updates to ensure you are catching anything time-sensitive.
I suggest reviewing your organization’s policies on an annual basis - at least - while also doing a deep dive into any applicable legislation surrounding each policy. This will ensure you are up to date.
of paid family leave in many states that we employ in. At face value, most of our employees are not eligible for any leave when welcoming a new family member into the world.
This was a major concern and a strong “no-go” for our HR and leadership team, and as a result, Leadpages rolled out an internal 12-month paid parental leave program for our U.S. employees, who face this lack of legislated leave entitlement.
Emily Hann: Although properly managing all areas of regulatory compliance are of high priority for our team, we always place a great deal of importance on legislation, or the lack thereof, that we believe to be re strictive to our employees and their overall wellbeing. For example, as a hybrid-remote company, we do not meet the “50 employees within a 75-mile radius” eligi bility rule to qualify for job-protected Family and Medi cal Leave Act (FMLA) leave. There is also an absence
Emily Hann: As far as difficulty goes, what stands out for me is understanding and interpreting the federal FMLA, while at the same time understanding that a handful of states also have their own family and medical rights laws that can run in conjunction or overlap with FMLA. This can get tricky, and it takes careful effort to ensure you comply with all the mov ing parts.
For example, if you have an employee in California, who is having a baby, as an employer, you need to ensure you are providing all the applicable entitle
what are the top areas of regulatory compliance that are of the highest concern for your Hr department in terms of tracking and managing them?
Which specific U.S. employmentrelated laws do you find are the most costly and difficult to comply with? Why? what needs to be done in terms of reducing the difficulties?
Q.
Q.
ments under FMLA, California Family Rights Act (CFRA), Pregnancy Disability Leave Law (PDL), and the Paid Family Leave Act (PFL). It is a recipe for a head scratch!
In a perfect world, having more of a streamlined and blanketed approach to family and medical leave laws across all states would likely ease the difficulties for employers to ensure they are complying. This is espe cially true for employers with teams in multiple states, with varying family and medical leave laws.
As a result of the varying leave laws, many compa nies choose to incorporate their internal programs to ensure the wellbeing of their employees, such as Leadpages’ internal 12-month paid parental leave program. Despite this program being quite costly to the company, in our opinion, it is worthwhile to ensure our employees receive the support they require and deserve.
Lastly, it is always best practice to have an employ ment lawyer look at any legally binding templates, such as non-compete agreements, to proactively ensure you have all your legal bases covered.
Emily Hann: To proactively identify employee com pliance issues, I recommend auditing your employee policies and programs on an annual basis at mini mum, while at the same time refreshing your knowl edge of any relevant laws or regulations that relate to your policies. This is a great way to proactively stay on top of any compliance gaps that need attention before it becomes an issue.
I would also recommend continuously staying on top of online publications and news releases and sub scribing to a variety of online resources, to avoid run ning into non-compliance scenarios down the line. Our payroll and HR teams work very closely together. This is a fantastic approach in having two compatible sides of expertise collaborating on areas that could potentially result in many employment-related compli ance issues, such as exemption statuses, overtime entitlements, leave legislation or 401K compliance. Payroll catches aspects that HR misses, and vice versa. It is a perfect cross-collaboration to mitigate these issues and headaches for the company, which tends to be segregated in many organizations.
Emily Hann: At Leadpages, with our flexible hybrid model, we occasionally have employees living and working in multiple states. As a result, we need to stay abreast of all the changes and updates to employ ment-related legislation in each state, such as differ ent annual exempt salary thresholds, paid disability and family leaves, and training mandates.
There is rarely a one-size-fits-all area of employmentrelated legislation between all of the states, which is probably the most difficult aspect of keeping up with changes to HR compliance. With flexible hybrid work models, you are managing the patchwork of regula tions amongst the different states a company em ploys in.
Emily Hann: It is very hard to predict with the everchanging landscape of how we work and what events occur in the country or around the world that affects changes in compliance processes.
What makes it difficult to keep up with changes to Hr compliancerelated laws, regulations and mandates?
How do you expect compliancerelated technologies and/or processes to evolve?
In the wake of record-breaking temperatures, widespread wildfires, 100-year flooding and other natural disasters, especially following a worldwide pandemic, employers are faced with a changing landscape of managing employees.
Many of these natural disasters are occurring in geographic areas that rarely had to deal with such issues. As of the writing of this article, according to fireweatheravalalanche.org., nineteen states have had wildfires burning. Kentucky, this time eastern Kentucky, is experiencing deadly flooding and hurricane season is in effect.
Importantly, the personal and widespread impact of the disasters forces employers to consider all aspects of the employment relationship. How and when to dis cipline employees; consider whether existing policies and procedures are flexible enough to allow employ ers to walk the fine line between being humanistic and caring while running the business.
What’s a reasonable employer to do? Let’s look at what one did. Looking back to the late hours of December 10, 2021, an EF4 tornado roared through Mayfield, Kentucky, causing catastrophic damage. One large building, in particular, used as a candle factory by Mayfield Consumer Products, was almost completely leveled. Shockingly, it was discovered that dozens of employees were working a late shift at
the facility when the tornado hit. Many of them were injured, and nine employees lost their lives.
In the aftermath of the devastation, some of the survi vors claimed that they wanted to leave the factory be fore the tornado hit but were threatened with termina tion if they did so. A federal court lawsuit brought by employees is currently pending in the Western District of Kentucky.
This is a cautionary tale for employers anywhere; now is the perfect time to take a step back and determine how to put emergency action plans in place for deal ing with natural disasters and other emergencies.
Employers are responsible for protecting employees from unreasonable danger in the workplace. This does not mean that places of employment are required to shut down for every thunderstorm, and some employ ers may never be able to close (like hospitals and law enforcement agencies). But every employer should take the time to identify reasonably foreseeable emer gencies, including natural disasters, and then figure out how to keep employees safe in the event of such emergencies.
For example, procedures to be followed if an evacua tion is necessary due to fire or flooding, and identifica tion of a safe room for employees to report to in the
event of a tornado or severe storm. Do not be afraid to exercise a little humanity. Employees are mothers, fathers, children, neighbors and caretakers of many sorts. Do you want to be “that employer” that refused to allow employees to leave to take care of a loved one? Think about allowing employees to leave volun tarily and understand that business operations will continue.
As will be discussed later, there is no obligation to pay non-exempt employees if they do not perform any work, but why not implement a special paid emer gency leave program that is only used in the time of a national disaster? This leave can only be used when there is a declared state of emergency or official disaster warning. Employees either receive the leave if they voluntarily leave or for example, receive double the amount of leave if they stay. If they are at home, stay at home. No emergency leave is available, but employees can take PTO during this period if travel is dangerous, and operations have ceased at the work place. There is no penalty for taking the leave. For employees that elect to remain working, make special provisions for their stay.
OSHA defines a workplace emergency as a natural or man-made “situation that threatens workers, custom ers, or the public; disrupts or shuts down operations; or causes physical or environmental damage.” A good resource for employers is a booklet titled How to Plan for Workplace Emergencies and Evacuations published by OSHA and the U.S. Department of Labor.
In the event of an emergency, employees will need to know what to do: When they should act, where they should go, what they should take with them, and whether there are any company closures. Employers should have a system in place to keep employees informed of impending natural disasters, especially in light of the sometimes fast-approaching changes in weather and safety challenges and employer access to social media and cell telephone policies.
In the midst of chaos is no time to think “how do we let everyone know what’s happening?” Thus, a proce dure for communicating information to employees
is a key component of an emergency action plan. Current contact information for the employees should be maintained and routinely updated. The employer should take the initiative to verify contact information rather than requiring the employee to take the initia tive.
For example, employees cannot access electronic W-2 forms without confirming contact information. Some employers implement a communication tree, where a few employees are designated to each call a list of people, each of those then calls another list of people, and so on until everyone has been contacted.
Other employers maintain a call-in number to use during emergencies, which plays a recorded message or utilizes a group text message. Whatever procedure the employer chooses, someone should be placed in charge of ensuring that it is followed and that all employees have been contacted. Take full advantage of technology to keep employees informed.
The Fair Labor Standards Act requires employers to pay non-exempt employees only for hours actu ally worked, regardless of whether the reason for not working is the result of a decision made by the employer or employee. For example, if the employer decides to close the workplace and sends employees home in preparation for a potential natural disaster, there is no obligation to pay non-exempt employees for any time that they are not actually working after the closure.
There are potential exceptions for waiting time or oncall time, like if the power is out at the workplace but the employees are required to stick around in case it comes back on, and for nonexempt employees who receive fixed salaries for fluctuating workweeks. Keep in mind, the employer may allow employees to take leave for the periods when they are not working due to natural disasters.
As for exempt employees, if there is any work per formed during the work-week, the employer must then provide the exempt employee their full weekly salary. Therefore, if a workplace is closed due to a natural disaster or other emergencies for less than a
full workweek, the employer will be required to pay the full salaries of the exempt employees for the week. Closures of an entire week, where the exempt employ ees do not perform any work during that week, do not require payment.
If the exempt employees are ready, willing and able to work, the FLSA prohibits the employer from making deductions in pay due to operational or other reasons. According to the Department of Labor, employers can substitute or reduce an exempt employee’s accrued leave (or run a negative leave balance) for the time an employee is absent from work, even if it is less than a full day and even if the absence is directed by the employer because of lack of work, without affecting the salary basis payment, provided that the employee still receives a payment equal to the employee’s prede termined salary in any week in which any work is per formed even if the employee has no leave remaining.
The employer’s pay policy should explain when and how employees will be paid to avoid confusion and claims of improper payment.
Employers should also give thought to how they maintain payroll and timekeeping records. In the event of catastrophic damage, workplace records can be lost, making it difficult or impossible for employers to process payroll. Appropriate backups, with appropri ate protections, are a very good idea.
Following a natural disaster, employers can expect to be hit with increased requests for leave and accom
modation. Being proactive and establishing emergen cy leave relieves some stress for the employee and the employer. Although the Family Medical Leave Act does not require employers to give employees time off to address personal matters, like making repairs to their home, it would require to give leave for employ ees, who cannot perform their jobs because they suf fered a physical or mental illness or injury (a “serious health condition”) as a result of the natural disaster, or must care for a spouse, child, or parent with a serious health condition.
Moreover, some employees may suffer significant im pairments as a result of a natural disaster that consti tutes a disability under the Americans with Disabilities Act. Employers need to be prepared to timely address these requests with compassion and consistency.
Once employers prepare an emergency action plan, do not forget the importance of communicating and training employees on their role in the safe imple mentation of the plan. There is a reason why build ings and schools have fire drills; the act of physically going through the motions of an organized evacuation makes it much more likely that the evacuation plan will be followed in the event of a true emergency. The same holds true for other portions of an emergency action plan.
Employers should act now to implement or update their emergency action plans, so that they can protect their employees, minimize confusion during an emer gency, and get back to work as quickly as possible following any disaster-related shutdowns.
Linda Bond Edwards is a Partner in RumbergerKirk’s Tallahassee office. She practices in the areas of employment, mediation and arbitration.
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The U.S. Department of Labor (DOL) recently unveiled a new proposed rule which revises the agency’s guidelines for categorizing employees or independent contractors under the Fair Labor Standards Act (FLSA).
In an exclusive interview with HR.com, Erica Mason, Partner in the labor and employment practice at Akerman LLP, touches upon the legal concerns that this rule presents for employers and the best practices for navigating them, and more.
Excerpts from the interview:
Q.What is the significance of the U.S. Department of labor's new proposed rule for independent contractors?
erica: The US DOL has issued a new proposed rule that will significantly impact how employers will evaluate individuals employed as independent contractors under the Fair Labor Standards Act (FLSA). Notably, this is the Biden Administration’s second attempt to undo the Trump Administration’s prior rule on the same issue, which made it easier for employers to classify workers as independent contractors.
Both the current and proposed rules are intended to provide employers with clarity regarding, but not alter, the six-factor “economic realities” test, which federal courts and the DOL have used for decades to determine whether an individual is in business for themselves or an employee of the company.
Current DOL leadership claims that the prior rule leaves workers vulnerable to misclassification, which can negatively impact their compensation and benefits. Business advocates argue that this new rule may negatively impact job creation and provides less flexibility to companies and individuals to transact in the “gig economy,” an economy that the FLSA, originally enacted in 1938, could never have contemplated.
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erica: Under the FLSA, employees are entitled minimum wage, overtime pay and contributions to Social Security and Medicare (FICA contributions). Although independent contractors must cover the full cost of their FICA contributions, they generally have more flexibility to negotiate their compensation and schedules, and work for multiple companies at the same time.
Practically speaking, because this rule will reduce the number of individuals who can maintain independent contractors classification, this new rule will cause employer overhead and staffing costs to skyrocket, particularly for those companies and industries that rely heavily on independent contractors, such as rideshare companies (Uber, Lyft, etc.), construction companies, and even financial services and insurance companies.
erica: Previously, the six factors of the “economic realities test” were meant to be “balanced” with “no one factor predominating over another. The vague nature of this formula leads to varying results across the federal district courts, and in many cases, contradictory case decisions within, and amongst, circuits
Under the current rule, two of the five factors are given more weight than the other four: (1) the worker's level of control over their work; and (2) the worker’s ability to profit from their position with personal investment. The proposed rule change under Biden's Department of Labor would also consider investments by the employee and employer, the skill displayed by the employee, the permanence of the working relationship, and the degree to which the worker performs a function that is integral to the business
what are the new parameters of the new proposed rule regarding categorizing employees or independent contractors under Flsa?
erica: In 2021, the DOL collected over $200 million in back wages for nearly 200,000 employees, who it determined employers had not paid in accordance with the FLSA— many of which involved independent contractor misclassification. Even more is collected through private independent contractor misclassification lawsuits, with an estimated 6,000 lawsuits filed each year in federal courts throughout the country, resulting in hundreds of millions of dollars in FLSA settlements each year.
Plaintiffs’ attorneys seek out these claims because once a violation has been established, the FLSA affords liquidated (double) and in some cases treble damages, and a full recovery of all reasonable attorneys fees and costs
Given the prevalence, and high stakes nature of FLSA misclassification cases, employers should be very concerned about running afoul of the FLSA under the new proposed independent contractor rule.
erica: An ounce of prevention is worth a pound of cure. Given the high-stakes nature of litigation of FLSA misclassification, employers should immediately review any workers, who are classified as independent contractors under the new proposed rule, to determine if they should be reclassified as employees.
what are the legal concerns employers should be aware of in the context of the revised rule?
Q.
When a business receives a charge of discrimination from the Equal Employment Opportunity Commission (EEOC), it faces significant risks, both in terms of legal costs and reputational costs. A key decision the business must make quickly is whether to use the EEOC’s mediation process to try to resolve the claim.
There are several benefits to utilizing the EEOC’s mediation process. These include access to
a no-cost mediator, postponement of the government’s investigation, and early and final resolution of the dispute, if successful. There are also challenges with this process, including the requirement to use an EEOC-assigned mediator, negotiating with an individual, who may not have legal counsel and may not understand his or her claims or their value, and the likelihood that the company will be required to pay money to resolve the claim.
Businesses can more efficiently and strategically navigate the risks of an EEOC charge once they understand the pros and cons of the EEOC’s mediation process, as well as best practices for effectuating any resolution achieved at the mediation.
Once a business receives notice of a charge of discrimination, it generally has a week or two
to decide whether to use the EEOC’s mediation process. Even if the business misses the initial deadline to select mediation, the EEOC is usually willing to extend it if both parties are ready and willing to participate in mediation.
If the business opts not to participate in mediation or if the mediation is unsuccessful, the next steps in the EEOC process will still be the same. In other words, an unsuccessful mediation will not change the EEOC process; it will simply extend it.
The most common next step is for the EEOC to assign an investigator to the file and for the company to begin preparing its response to the charging party’s claims. Another possible – but uncommon – next step is for the charge to be dismissed without further investigation.
This may happen because the EEOC realizes it does not have jurisdiction, or because the charging party seeks to shorten the EEOC process, so he or she can file a lawsuit. (The EEOC serves as the gatekeeper for litigation: employees and applicants must file their claims with the EEOC before they can assert federal discrimination claims in state or federal court.)
If a business chooses to mediate with the EEOC, one of the major benefits of a successful mediation is that it often cuts the process in half, according to EEOC data. The percentage of EEOC mediations that end in a
resolution has hovered around 70% over the past three years Though mediation’s success depends on the nature and complexity of the claims, the reasonableness of the parties, and the effectiveness of the mediators, in our experience, the process has a greater than 50% chance of success for little investment in the part of the company.
The actual mediation typically takes less than a day, whereas responding to the EEOC charge and defending a potential lawsuit is a far lengthier and costlier process. Even if the mediation is unsuccessful, businesses may still benefit from a delay in the government’s investigation because they will have more time to set a strategy and consult with outside counsel to prepare for a future investigation.
Another benefit of mediation is the ability to utilize an EEOC mediator at no cost to the company. Businesses that have gone through private mediation know they can be expensive. Depending on the location of the mediation and the chosen mediator, a private mediator may charge hourly rates anywhere from $300 per hour to as high as $1,000 per hour. While an EEOC study determined the average mediation lasts three to four hours, we have also seen them last 10 hours or more. Thus, the savings from a free mediator can be substantial.
Though the EEOC provides the mediator at no cost to the company, it is worth noting that
the entire mediation process will not be free if the business retains outside counsel to help it navigate the mediation process. This is generally a wise investment. Experienced attorneys can increase the likelihood of an early and final resolution by evaluating the strengths and weaknesses of the defense, assessing the potential liability exposure to the company, and determining the potential settlement value of the case.
An early resolution of a case can result in massive savings to a business in terms of time, expense and liability exposure. As an initial matter, the company will have to neither invest time in collecting documents and information and participating in witness interviews to defend the case, nor expend significant resources defending the case through a lengthy litigation process.
Second, because mediation is a confidential process, the parties cannot share the details of the mediation with others, nor can they use anything from the mediation as evidence in a later lawsuit. Each party is required to sign a confidentiality statement prior to participating in the mediation to acknowledge their agreement to this confidential process. Unlike a lawsuit filed in state or federal court, the EEOC’s file is not an easily accessible public record. Thus, if the company has concerns about negative publicity, an early resolution of the claim through the EEOC’s confidential mediation
process can be an effective way to avoid those concerns.
Though there are many benefits to the mediation process, it also comes with challenges. One potential downside is the inability to select the mediator. In private mediation, the parties and counsel often consult with one another to identify a mediator they feel is best suited to handle the unique aspects of the dispute.
In an EEOC mediation, the parties do not get to choose the mediator. Rather, the EEOC assigns the mediator – an EEOC employee who often handles a large caseload and has little information about the case until the mediation begins. As such, the company, with the assistance of counsel, should be prepared to work with the EEOC mediator to address any potential pro-employee bias, the unique aspects of the case that may impact the negotiations (i.e., important background facts or personality conflicts) and any complex legal issues.
Another downside of mediation and perhaps the biggest challenge is a pro se charging party – claimants who choose to represent themselves rather than hiring an attorney. In pro se mediations, process tends to be more emotional. More often than not, the charging parties feel mistreated and want someone to blame. Without the benefit of their own advisor, they struggle to fully understand the law, the process,
or the value of their alleged claims.
We have seen pro se parties make million-dollar demands, when there is no legal or factual basis to support such a request. Thus, navigating the emotional, legal and practical elements of mediation with a pro se charging party certainly comes with its challenges.
That said, we have successfully mediated many claims with pro se charging parties. In most cases, the fact that they are unrepresented is not a reason to forego mediation. Oftentimes, the charging parties need an opportunity to tell their story and express their emotions. From the company’s standpoint, the mediation will be more productive if the company focuses less on emotion and finger-pointing and more on the practical aspects of the case: will the charging parties be able to prove the legal elements of their claim? Do they have evidence or witnesses to support the claims they are asserting? Does the law support the damages they seek to recover? Are they prepared to litigate this case for the long haul (up to several years) and possibly recover nothing? By focusing on the practical and legal realities of a case, there is a greater likelihood of reaching a reasonable compromise.
One of the final downsides businesses should consider before choosing to mediate is the prospect of paying the charging
party to resolve the claim. This can be a frustrating aspect of the mediation process, particularly when the company followed its handbooks and policies, and its leaders feel the company did nothing wrong. Nevertheless, mediations require a reasonable compromise from both sides. The cost of resolving a dispute rises steadily after mediation.
Thus, a company’s decision to resolve a claim is a business decision and the company should engage in a cost-benefit analysis, with the assistance of counsel, to evaluate the costs and risks of settlement versus continued litigation.
Despite the various challenges of mediation, the pros often outweigh the cons, particularly when a business is strategic and utilizes experienced advisors in the process. But even in successful cases, it is critical for businesses to maximize their protection by properly documenting the settlement.
The EEOC has a standard settlement agreement that the parties are required to execute. That agreement, however, only pertains to the claims before the EEOC. It is important for businesses to enter a more comprehensive private agreement with the charging party.
One note before focusing on the private agreement: in both the EEOC and private agreement, it
is critical for the business to be clear up front on the tax status of any payment to the charging party. Payments tied to lost wages are typically subject to payroll taxes and withholdings and reported on a W-2. Payments tied to emotional distress may be reported on a Form 1099 that is not subject to payroll taxes and withholding. While the exact tax ramifications vary by settlement, the key is to be clear with the charging party up front so there is no confusion on the ultimate payment amount.
As for the private agreement specifically, it should include a general release of all claims from the charging party, not just the claims before the EEOC. There should be a provision stating clearly that the company is not admitting liability and that this is a settlement for purpose of avoiding litigation and further expenses. Preferably, there should also be a clear agreement that the charging party will not reapply for employment and that the business has no obligation to rehire him or her. It is also useful to include language about how to handle employment inquiries going forward.
In most cases, the business will agree to provide the charging
party’s prospective employers with a neutral reference, such as providing only dates of employment and position held.
Other provisions the business may want to include are confidentiality and non-disparagement provisions – these will help prevent the charging party from discussing details of the settlement and criticizing the business on social media. However, businesses should be aware of the following:
(1) The National Labor Relations Board (NLRB) frowns upon confi dentiality and non-disparagement provisions and tends to view them as infringing on employees’ rights to engage in concerted activity in relation to the terms and conditions of employment. Businesses can generally address this issue with a carve-out provision protecting rights under the National Labor Relations Act, but there is still a risk the NLRB will render those provisions unenforceable.
(2) There are potential tax implications with nondisclosure agreements (NDAs) involving sexual harassment claims. In the wake of the #MeToo movement, Congress passed a law that prevents businesses from taking a tax deduction from payroll and
payment expenses tied to sexual harassment settlements. In other types of settlements, an NDA would not prevent those expenses from being deductible.
When businesses are aware of the challenges of the EEOC mediation process, understand the limitations of the EEOC’s standard settlement agreement, and are strategic in their approach, the pros of using the EEOC’s mediation process generally outweigh the cons.
In that regard, partnering with outside counsel, who regularly handle EEOC mediations can be especially valuable in efficiently and effectively defending these claims.
HR compliance processes to
data, reporting and employees’ understanding of compliance procedures
REPORT SUMMARY
The State of Legal, Compliance and Employment Law, 2022-23 Exclusive Research from HR Research Institute
Survey conducted by: Sponsored by:
A Guide to Top HR Compliance Essentials: Everything You Need to Know By Industry
By Brian Ewing, JazzHR
Background Screening Compliance 101: FCRA Summary of Rights
By Clare Horvik, Verified Credentials
From Labor Unions to Hybrid Work: Staying Compliant During America's Workforce Evolution
By Jim McGeady, ADP
What Does OFCCP’s UPDATED Pay Directive 2022-01 Mean to You?
By Paul McGovern, Circa
Top 3 Legal and Compliance Reasons Why You Should Have an Integrated Disability Absence Management Program
By Ann Kuzee, ieatraining
From Foraging to Modern Technology: The Evolution of Life and Work
By Karina Monesson, UKG
Making the Impossible, Achievable:
The HR Research Institute, powered by HR.com, the world’s largest social network for Human Resources professionals, is a key part of our mandate to inform and educate today’s HR professionals. Over the past three years, the HR Research Institute has produced more than 85 exclusive primary research and state of the industry reports, along with corresponding infographics in many cases, based on the surveys of thousands of HR professionals. Each research report highlights current HR trends, benchmarks, and industry best practices. HR Research Institute Reports and Infographics are available online, and always free, at www.hr.com/featuredresearch
Improve HR compliance processes to manage data, reporting and employees’ understanding of compliance procedures more efficiently
Exclusive Research from HR Research Institute
Sponsored by:
HRcompliance continues to be crucial. The uncertainty brought forth by changing labor laws and regulations often makes it difficult for many organizations to efficiently manage compliance.
To better understand why so many organizations struggle as well as how the best ones succeed, HR.com’s HR Research Institute ran a survey, “The State of Legal, Compliance and Employment Law 2022”, to investigate the following areas:
● the HR compliance landscape, including compliance maturity levels, the prevalence of audits and whether HR compliance is well-funded
● the extent to which organizations have compre hensive HR compliance strategies and plans to manage compliance issues
● how often organizations use technology to stay up-to-date, and the extent to which they incorporate automation
● the key factors, laws and regulations that make HR compliance concerning, difficult and costly
● how companies stay abreast of changes to regulations
● the extent to which their reporting and analytical tools generate meaningful insight
Here are the key findings from the survey:
Finding #1: 45% say their organization’s compliance processes are highly mature
When asked to determine the extent to which companies have established employment and labor law compliance processes, 45% of respondents indicated their organization is at the top of the ma turity model; that is, their organization has clearly mapped processes and employees understand them well.
While it is positive that so many have established compliance processes, this leaves more than half (55%) of organizations with less mature processes.
Finding #2: Companies most commonly report the growing scope of federal and state HR-related mandates as a challenge to keeping up with HR compliance-related changes
When asked to choose the top three factors that make it difficult to keep up with changes to HR compliance-related laws, regulations and mandates, nearly half (47%) of the respondents said the growing scope of federal and state HR-related mandates is the top most challenge, followed by changing interpretations of federal and state laws (39%) and technology failing to keep up with compliance changes (34%).
These three issues feed into each other; out of date technology may not be able to support constantly fluid regulations (e.g., during Covid 19).
Findings #3: Most think their organization is wellprepared to deal with employment compliance issues, but fewer say compliance initiatives are well funded
A large majority of respondents agree or strongly agree that their organization is well-prepared to deal with employment compliance issues (84%).
When processes lack clear documentation and instruction, there is more risk for mistakes and inconsistencies between one employee situation to the next. In other words, a lack of documenta tion and unclear protocols can also bring forth a greater potential for costly mistakes.
To learn much more about the survey on The State of Legal, Compliance and Employment Law, 2022-23 and for key insights and strategic takeaways, we invite you to read the complete report here
While very few things in life are certain, compliance regulations are a rare exception. However, they are an important exception. Equal Employment Opportunity Commission (EEOC) violations alone cost U.S. businesses a reported $385 million in 2021. When you factor in breaches from Fair Labor Standards Act (FLSA), Occupational Safety and Health Act (OSHA), Uniformed Services Employment and Reemployment Rights Act (USERRA), Employee Retirement Income Security Act of 1974 (ERISA), Consolidated Omnibus Budget Reconciliation Act (COBRA), and others, this number grows exponentially.
Behind each compliance acronym is a series of regulations that businesses in all industries are expected to follow, with penalties ranging from light warnings to hundreds of thousands of dollars in fines. And no matter how long you have been in HR, the list of compliance requirements each year seems harder to keep track of.
To aid in your effort, we have created this guide to highlight HR compliance essentials. And, while we are sure you already know what each acronym
stands for, we will explore what these terms are all about, providing additional resources for your reference. But before we examine each compliance area, we want to quickly highlight how you can use centralized recruitment technology to support compliance reporting.
The Importance of Data Privacy and Leveraging a Centralized System for Compliance Reporting
Maintaining data privacy is essential for employers today to comply with regulations. Without a centralized system, it is extremely challenging to maintain privacy for hiring and employment data. And it presents an ongoing risk for privacy data, like PII, to be breached.
Using an easy-to-use tool that streamlines compliance reporting, and keeps data safe and confidential, helps ensure your business fulfills its compliance requirements. Tools like JazzHR recruitment software offer compliance reporting to fulfill your lengthy reporting requirements and protect your business. Organizations can use JazzHR to report on compliance and keep sensitive data confidential.
JazzHR provides fast access to data to help your team stay informed about your current state of compliance, helping you report on EEOC, Office of Federal Contract Compliance Programs (OFCCP), and Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) compliance without all the hassle. And it keeps protected class data collected through the job application process private and confidential. You can also include critical compliance forms and disclaimers directly on your job applications in JazzHR as outlined by federal law and guidelines.
The hiring process represents one of HR’s greatest responsibilities when it comes to compliance.
There are several federal regulations that all businesses are expected to meet, including one we have already mentioned: the EEOC.
The commission’s website offers a clear description of its mission:
‘The…EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status and sexual orientation), national origin, age (40 or older), disability or genetic information.’
You have probably heard of the major laws enforced by the EEOC already. They include Title VII, the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). Aside from the EEOC, there’s also the Uniformed Services Employment and Reemployment Rights Act (USERRA), which covers military veterans.
In most cases, it is possible to remain compliant with EEOC laws by pursuing an inclusive recruitment process. If you would like to read more about inclusivity in hiring and benchmark your current efforts, you can find our guide to the subject here
There are, however, some time-sensitive forms involved. If you employ more than 100 people, you will need to fill out the annual EEO-1 report. You can find both the form and this year’s deadline here.
There is also Form I-9, part of which has to be completed within three days of a new hire. It is used to confirm the identity of employees and their eligibility to work in the United States, and has to be retained for three years.
Businesses also have to display a summary of EEOC laws in a clearly visible location. For fully remote businesses, that may mean uploading it to your company’s intranet. You can find out more here. If you are not sure whether your state also requires anti-discrimination and harassment training, OpenSesame has the answer here.
Further Resources:
● EEOC Laws & Guidance
● How to Create a Sustainable DE&I Program
● Diversity Training in the Workplace
● USERRA Guidance
The two major laws that protect compensation and paid leave are the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).
The FLSA covers minimum wage, working hours, and overtime pay. There’s a federal minimum wage, but knowing your specific state’s requirements is more important, as in many cases, the local number is significantly higher. To find out the minimum wage that applies to your business, take a look at this interactive map provided by the Department of Labor (DoL).
Overtime pay is a requirement as soon as an employee exceeds a 40-hour workweek, which is defined as full-time by the FLSA. The DoL expects businesses to keep full records of wages, overtime payments and hours worked, but you’re probably already doing this. In their own words, ‘most of the information is of the kind generally maintained by employers in ordinary business practice…’
The FMLA is straightforward. It gives staff the right to:
‘…take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.’
In most cases, this covers employees for twelve weeks per year, if required. There are some exemptions, which can be found here.
Employers with more than 50 full-time staff are also expected to comply with the Affordable Care Act (ACA), which requires that full-time employees are given health coverage. For a more detailed look at this aspect of HR compliance, check out this helpful breakdown.
If you use any of the governmental websites we have linked to, you will probably come across some variation of the phrase ‘eligible employees’. The HR compliance regulations listed in this guide don’t apply to all workers in the same ways.
This is confusing territory. What is the difference between a temporary, seasonal, and contract worker, and how do these regulations apply to them? In order to answer those questions, we created a comprehensive guide to short-term employment law that you can find on our blog
Further Resources:
● The Handy Reference Guide to the FLSA
● ACA for Employers
● How to Remain Compliant When Hiring
Contingent Worker
Employee health and safety is a responsibility shared throughout private organizations, but HR is often the department tasked with maintaining compliance.
You don’t want to fall foul of the Occupational Safety and Health Administration (OSHA). Fines have increased in recent years, with serious violations now costing businesses as much as $13,653. Keep making the same mistake, and that skyrockets to $136,532. Per violation.
OSHA regulations vary by industry and the risks associated with your specific workplace, so it is best to visit their website’s regulations page and determine which applies.
There are some guidelines and suggestions that apply to all businesses returning to work after the pandemic. They have got a full (and easy-to-follow) guide to mitigating Covid-related risk here
OSHA is one of the major regulatory bodies when it comes to HR compliance, but protecting employees also involves being responsible for their information. Non-governmental organizations are not beholden to any regulations when it comes to employee privacy, but it is still important to safeguard it.
Most businesses are now collecting detailed information from the recruitment process through onboarding and employment. In many cases, that information will be highly sensitive — think background checks and other personal documents. With the number of private record breaches increasing by 141 percent over the last two years, protection has never been more important.
It is an entire subject of its own, so we’ve created a concise and up-to-date guide to cybersecurity separate from this post. You can find it here
Further Resources:
● OSHA’s website
● Why You Need Workplace Health and Safety Training
● OSHA Outreach Training FAQs
Hopefully, this high-level rundown of the HR compliance essentials has demystified the subject for those new to human resources and provided a refresher for those of you with years of HR experience. Being aware of the key regulations is valuable, but it is only half of the compliance effort. As long as you stay organized, you will head off any potential mistakes with preparation.
Remember, it’s a good idea to create a calendar of the various deadlines you will need to meet and to plan regular compliance check-ins on a schedule that suits your business. Do so, and you will be able to avoid penalties with minimal effort. Your HR compliance processes need to be exhaustive, but they do not have to be exhausting.
Find out how JazzHR offers powerful, customizable recruitment software that allows hiring teams of any
size to visualize recruiting data and easily monitor compliance. Schedule a free demo today to learn more. Sign Up for the Demo At: info.jazzhr.com/ compliance-demo.html
Brian Ewing is the Director of Product Marketing at JazzHR, an Employ Inc. brand. With more than a decade of marketing and product management experience, Brian specializes in synthesizing market, customer, competitive, and product inputs to drive customer loyalty and support innovation across B2B and SaaS solutions. His ability to drive collaboration across the organization and guide a cross-functional team makes him an invaluable leader within the JazzHR organization.
JazzHR gives you fast access to the data you need to stay informed about your current state of compliance.
Find out how our powerful, customizable recruitment software allows hiring teams of any size to visualize recruiting data and easily monitor compliance. Schedule a free demo today to learn more.
Sign Up for the Demo At: info.jazzhr.com/compliance-demo.html
The background screening process is built with the candidates in mind. That includes the built-in and mandatory compliance steps that employers that use background reports and background screeners must follow.
Federal and some state and local laws look to empower candidates with notices of rights and provide the next steps once a background report has been done on them. The candidate may not know where to go if they wish to dispute information, for example. That is part of why certain documents, such as the “Fair Credit Reporting Act (FCRA) Summary of Rights” exist.
The FCRA Summary of Rights is important because it outlines the consumer’s rights under the FCRA. Some states even have a state-specific summary of rights, like Washington Transparent Protections for Candidates
The FCRA regulates the background screening industry, and includes many requirements for background screeners (known as “consumer reporting agencies” under the FCRA) and employers
that use background reports (called “consumer reports” under the FCRA).
Say a background report contains a record, and a potential employer is considering taking adverse action against a candidate based on the background report – what then? Let us look at what the FCRA says if a background report is used for employment purposes. When a potential employer is considering taking adverse action against a candidate based, in whole or in part, on information contained in the background report, before taking adverse action, they must provide the candidate with:
1. A copy of the report; and
2. A written description of their rights under the FCRA (the “FCRA Summary of Rights”)
Since employers make the hiring decisions, it may be up to you to provide these to candidates.
Need help managing these documents? Ask us about our Candidate Communication Tool. This Built-in solution helps manage your compliance documents for adverse action and more ››
Federal law defines what must be included in the FCRA Summary of Rights. This includes, but may not be limited to, a description of:
1. Rights of the consumer to:
● Obtain a copy of a consumer report from each consumer reporting agency pursuant to federal law. This includes the frequency and circumstances under which a consumer is entitled to receive a consumer report without charge pursuant to federal law.
● Dispute information in the file of the consumer under the FCRA
● Obtain a credit score from a consumer reporting agency and a description of how to obtain a credit score.
● A consumer reporting agency without charge, as provided in federal regulations prescribed under the Fair and Accurate Credit Transactions Act of 2003.
● A Nationwide Specialty Consumer Reporting Agency, as that term is defined by the FCRA, as provided in federal regulations prescribed under the FCRA
Users of consumer reports are not alone in drafting an FCRA of Summary of Rights. The Bureau of Consumer Financial Protection (CFPB) is required to “prepare a model summary of the rights of consumers under the [FCRA].”
The CFPB is required to:
● Actively publicize the availability of the model summary of rights
● Conspicuously post on its Internet website the availability of such summary of rights
● Promptly make such summary of rights available to consumers, on request
The model FCRA Summary of Rights mandated by the CFPB was last amended on September 21, 2018.
Have other questions about the documents needed for a compliant background screening process? Our client Resource Library is a great place to help you start thinking critically about your documents with sample disclosures to help you as you draft or review your own. Your legal counsel can also be a go-to resource to help you ensure you remain in compliance with federal and state background screening laws. Use those resources to create a compliance program that helps you stay on top of background screening requirements.
Do you have all your FCRA basics in order? Use our checklist to see ››
Clare Horvik is the Senior Contributor & Vice President of Marketing at Verified Credentials, LLC. With over 15 years in background screening, Clare fuels the content development engine of Verified Credentials with strategic insights, unique research and analytics, and target-driven campaigns and events. Clare is a Senior Contributor at Verified Credentials who has led new product releases, developed training and education programs, and is always on the lookout for new ways to share Verified Credentials’ experience with HR professionals.
Compliance Resources:
● A copy of the model FCRA Summary of Rights is available here
● Additional information from the CFPB is available here
AsAmerican workers and their employers forge new paths, we look back at past inflection points in our workforce's rich history and share how organizations can use technology to not only simplify compliance, but also improve employee satisfaction.
While examining the history of working in America, we see how current worker benefits, such as overtime pay, paid time off, family leave, pay equality, safe working conditions and restrictions around child labor were won in part by employee unionization, much of which took place alongside American industrialization.
Today, the country's workforce is at yet another crossroads following the “great resignation" and the meteoric rise in remote, hybrid and other flexible work options. As employers navigate these new waters during a historic labor shortage, their relationships with various types of workers must evolve, if they wish to remain competitive and foster a productive work culture.
At the same time, they must also maintain compliance as they determine how to best move their workforce forward.
During times of change, we can look to the past for lessons that help us shape the future. We must also explore how today's technology can best support necessary changes. Here is a brief look at how employees and laws have impacted employers and ways organizations can manage compliance as a strategy for attracting and retaining labor.
Built upon 140 Years of History — Labor Unions Today
During a period when workers averaged 60 working hours per week, labor unions originated as a way for them to show solidarity while fighting for shorter workdays and more paid time off. Today, millions of workers maintain membership in unions.
Recently, employee unionization efforts at several high-profile businesses have made headlines, and younger workers are seeing the benefits of unionization. A Bureau of Labor Statistics report shows that 15.8 million wage and salary workers were represented by unions in 2021. Additionally, the data shows that 75% of people who joined a labor union in 2017 were younger than 35.
Unions have played a significant role in establishing many laws, the most significant of which are the Fair Labor Standards Act (FLSA) of 1938, the Family Medical Leave Act (FMLA), a minimum wage mandate, extra pay for overtime work and basic child labor laws. Laws like these were preceded by the series of programs and projects President Franklin D. Roosevelt instituted, collectively called The New Deal (1933-1934) and The Second New Deal (1935-1936).
As industrialization in the United States progressed, national labor organizations were formed to advocate for regulations. These organizations' collective bargaining power contributed to the creation of the Department of Labor by Congress, primarily to administer labor laws guaranteeing the right to safe, fair and healthy working conditions.
Put in place during the Great Depression to provide jobs and stabilize the economy, Roosevelt's programs set a precedent for politics, workers and employers for decades to come. Thanks to these laws, employers and governing bodies receive clear guidelines for creating a safe workplace. Over time, this has allowed workers to reduce their need for and reliance on unions.
Whether it is compliance with wage and hours laws or specific union agreements, employers must have processes in place to simplify education and administration. Those that do not could face financial penalties, employee grievances and attrition.
Compliance challenges include:
1. The tracking and payment of overtime Calculating hours and applying the law accurately, so that regular and overtime rates can be determined and applied.
2. Time off and family leave Tracking entitlement and accrued benefits, including meal and rest breaks, sick time, vacation time and holidays.
3. Child labor. Limitations and safety regulations so that when children do work, they are given certain protections and are held to a specific set of standards.
4. Wage standards and equal pay. To ensure living wages for a wide variety of jobs and working to implement fair and equal wages.
5. Safety and working conditions Labor unions dedicate significant resources to monitoring and improving workplace safety and health conditions.
How Technology Can Aid Compliance Balancing the needs of the workforce with the
needs of an organization is always a challenge, but it is especially difficult when it comes to aspects of employment that fall under compliance restrictions for laws and regulations. Employers must maintain a large amount of documentation and meet high standards for accuracy and integrity within that documentation.
Fortunately, workforce management technology is available to help employers monitor and stay on top of compliance with tools, such as:
● Rules engines that allow businesses to tie pay and wage rules to specific worker populations, such as overtime pay to nonexempt employees.
● Work rules that track warnings and violations and deploy soft and hard blocking of schedule violations.
● Data collection that allows businesses to capture punches from the source (mobile, clocks, etc.) for accurate records and calculations.
● Digital audit trails, approvals and attestations that allow businesses to maintain accurate time edits and record-keeping.
● Accrued time off accounting that enables organizations to calculate earnings and usage of both paid and unpaid time off.
● Attendance policy management that makes it easier for businesses to track instances of events like unplanned absences and tardiness and take disciplinary actions.
● Leave case management that supports easy management of workflow and documentation for intermittent and continuous leave cases.
Through these tools, workforce management technology solutions can help simplify compliance by removing subjectivity from the data collection and storage process and making it easy to capture proof in record-keeping when needed. By streamlining these functions, employees are protected and, in turn, happier.
Organizations with sound compliance management can more easily enjoy good relationships with workers and their unions, leading to benefits, such as:
● Reduced employee turnover. Research has long shown that unionized workers are more likely to remain in their jobs. In a recent study, union members were found to have significantly higher levels of job satisfaction than non-members.
● Lower hiring and training expenses. When businesses experience less turnover due to unionization, they spend less on hiring, recruiting and onboarding new workers.
Organizations can benefit from significant cost savings in increasing their retention rates.
● Increased productivity Data from the last decade shows that union organizations led to a 24% increase in manufacturing and a 38% increase in the construction sector.
● Access to a highly skilled talent pool. Many unions offer their members a wide range of skills development training programs, apprentice programs and labor management partnerships that provide unique opportunities to develop in-demand skills.
With the help of technology, compliance can be turned into an advantage that helps companies create a safe and fair workplace. Workforce management technology can help companies maintain accurate records, analyze workforce data and ensure their compliance requirements are in order.
This story was originally published on SPARK, a blog designed for you and your people by ADP®
Jim McGeady is the Head of Product Marketing for the ADP Workforce Management and Data Solutions businesses. He has over 25 years of experience helping clients drive results through the optimal management of their people. Jim has been a leader in strategy, marketing and product management with business software innovators including ADP, UKG, Symplr, Infor and IBM.
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The Office of Federal Contract Compliance Programs (OFCCP) “revised and revisited” Directive 2022-01 five months after issuing it.
The update helps address concerns about the privacy of pay analyses performed under attorneyclient privilege (the privilege). (See Circa’s article on the original directive.) Issues still outstanding include what constitutes a compliant review of contractors’ pay systems under 41 CFR 602.17(b)(3), and what documentation contractors must provide in relation to 41 CFR 60-2.10(c) to demonstrate that the required review took place.
Under the original Directive, OFCCP maintained that it was entitled to a contractors’ review of compensation systems produced under the privilege if federal contractors did not provide “an acceptable pay equity audit demonstrating compliance with 2.17(b)(3)”. The updated Directive clarifies that contractors can show compliance with 2.17(b(3) and keep privileged reviews private by providing either:
* The results of a separate, non-privileged analysis (one completed without any assertion of privacy), or
* A detailed affidavit stating that a privileged review was completed
Under each alternative, the contractor is to provide documentation, including the number of employees reviewed, forms of compensation analyzed (base pay, etc.), and method of analysis employed.
The updated directive is worded in such a way that that one might think it requires a statistical review of pay systems. It provides a list of sophisticated forms of review (“multiple regression analysis, decomposition regression analysis, metaanalytic tests of z-scores, compa-ratio regression analysis…”).
It fails to mention that 2.17(b)(3) leaves the method of review to a contractor’s discretion. Contractors are free to use simple analyses, and need not even use numbers. The updated directive’s documentation requirement relies on 41 CFR 602.10(c). This regulation, however, does not specify specific data or documents to keep.
* A version of the privileged report redacting sensitive information
Directives are ‘sub-regulatory’ guidance that explains how an agency will implement existing law. To change the law to require specific forms of compensation system review and documentation, OFCCP must update 41 CFR 60 through the Administrative Procedures Act’s “notice and comment” process (5 U.S.C. §§ 551–559).
Why beard the lion? Rather than trying to convince the agency that it asks for too much, consider readying a simple analysis of your employer’s compensation system. Consider doing this whether your employer performs a privileged compensation review or not.
in average pay to identify race/gender patterns and trends for further analysis. Create pay groupings that align employees who do similar work.
Your company may already have them in place to set pay. Focus on groups with wider pay disparities. Defer to more sophisticated reviews performed by your employer, if available, and review employee history to justify or remedy differences.
The updated Directive “recommends” that contractors, who perform sophisticated statistical analyses provide detail that will help OFCCP understand methods and results. The requested (not required) information includes:
Cover your bases. Non-statistical review commonly involves a comparison of ‘raw’ percent differences
1. all employee pay groupings evaluated;
2. an explanation of how and why employees were grouped for the analysis;
3. which, if any, variables, factors, measures, or controls (e.g., tenure, education, structural groupings, performance ratings, prior experience, etc.) were considered and how they were incorporated in the analysis; and
4. the model statistics for any regressions or global analyses conducted (e.g., b-coefficients, significance tests, F-tests, etc. for race, ethnicity, and gender-based variables.
OFCCP does not regularly provide this type of information to contractors. It could be useful, however, if both contractors and OFCCP share this detail. Such an information exchange could lead to a quick resolution and fair results.
The updated directive will help contractors maintain the privacy of compensation analyses performed under attorney-client privilege, especially for those who create separate, non-privileged reviews. The agency states that by March 2023 it will seek changes to Supply and Service regulations.
Fingers crossed that it does not press for sophisticated pay equity analyses from all contractors. For one thing, there are differences of opinion between OFCCP and many contractors on how to perform pay analyses. For another, it will likely be difficult for many smaller contractors to meet sophisticated review requirements.
In the meantime, the updated directive serves its stated purpose of ensuring contractors’ focus on pay analysis. The update asks that contractors review pay differences, take pro-active steps to address issues identified, and decide how to measure success. This is a good to-do list for addressing pay equity.
This article first appeared here.
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Paul McGovern is Managing Partner of Praxis Compliance.As dedicated HR and business professionals, we are frequently searching for ways to ensure that all relevant legal and compliance requirements are met, employee satisfaction and engagement are maintained or increased, and the organization’s culture fosters innovation, and underscores respect and compassion.
One way to accomplish all these desired goals is to design an Integrated Disability Absence Management program.
An Integrated Disability Absence Management program involves the administration of all absence and disability-related programs in a centralized and integrated structure. It is a well-thoughtout program that is employer-specific, and once designed and implemented, creates a very efficient, effective, and coordinated business structure that addresses a variety of business needs, such as
risk management; employee health and wellbeing; policy coordination; safety initiatives; financials; return to work/stay at work (RTW/SAW) programs; absence, disability, and claims’ management; etc.
Implementing an Integrated Disability and Absence Management Program does not just ensure consistent employer compliance with laws and regulations, it puts in place efficient policies and protocols that help:
● Reduce employee absences
● Improve employee retention
● Boost team morale
● Reduce financial and operational costs
● Drive better bottom-line profitability for the entire organization and increase competitive market standing
Compliance with FMLA can be very challenging for any covered employer, but it is a regulation that must be managed well to avoid legal consequences. The regulation has been in place since 1993, and whether liked or not, it appears rooted. In fact, over the past couple of years, at the U.S. Congressional level, there has been considerable discussion about enhancing it with paid FMLA. At this time, those discussions have stalled, but in the meantime, employers need to effectively manage FMLA according to the regulation.
As many organizations have learned, just trying to manage FMLA paperwork within the regulatory requirements can create legal issues for an employer. This can occur when an employer simply does not issue proper paperwork timely or not at all, and there you have it, an employer is in violation of the FMLA regulation. What are a few of those paperwork and timeline requirements?
The FMLA regulation requires that “When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” §825.300(b)(1) This triggers an employer to send a Notice of Eligibility.
The FMLA regulation also requires that “When the employer has enough information to determine whether the leave is being taken for an
FMLA-qualifying reason (e.g., after receiving a cer tification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.” §825.300(d)(1). This triggers an employer to send a Designation Notice.
These regulatory requirements alone place heavy legal responsibilities on an employer, and by doing so, necessitate action by the employer to ensure that these responsibilities are being completed with accuracy and that legal compliance is being met. Additionally, like any other business process, an employer must ensure that people are being managed properly, and to determine this, an employer must ask plenty of questions.
Who is managing these FMLA paperwork processes in your employer’s workplace? How is FMLA paperwork being managed? Is leave management insourced, co-sourced, or outsourced? Are policies up-to-date and aligned with the FMLA? Do employees know who to go to or where they go if they have a need for leave? Are management teams well-trained on FMLA processes and procedures? Does your employer have leadership oversight for the management of FMLA?
Having a well-designed, integrated disability absence management program will address these questions. For example, as part of your program, having a centralized leave reporting system and identified staff or vendor that manages your FMLA paperwork will increase the likelihood of successful compliance with FMLA, but this is just part of the integration. To become fully integrated, you need to look at your workers’ compensation program, RTW/SAW program, short and long-term disability plans, pay policies, and so much more.
One source for learning how to design and structure an effective integrated disability absence management program is through the Insurance Education Association. They offer a certifica tion called the Certified Professional in Disability Management in which integrated disability absence management structures are discussed in detail. To create the best design structure for your organization, begin by learning about these program options and the laws associated with them. You can make a significant difference and help your organization achieve the desired goals discussed above.
In addition to FMLA, we can not forget about the everchanging and growing number of state leave laws. The trend most noticed and followed are state leave laws in the area of paid family and medical leave, but did you know there are over 400 leaves collectively across the United States that employers must manage!
These leaves range from paid and unpaid family and medical leave, but also include leaves related to jury duty, voting, crime victims, blood donation, bereavement, court attendance, personal protected leave, volunteer firefighters, earned sick leave, etc. The list goes on, and it is not stopping.
As of September 2022, 8 states (California, New Jersey, New York, Rhode Island, Hawaii, Washington, Massachusetts, and Connecticut) and the District of Columbia have some form of paid leave benefits applicable to private employers. These programs frequently run concurrently with FMLA or other state leave laws that provide job protection making the challenges of ensuring legal compliance even more challenging.
Brace yourself, though, because the state leave law list is growing. More states have already passed laws providing employees with Paid Family Medical leave.
● Oregon PFML begins 1/1/23
● Colorado PFML begins 1/1/24
● Maryland PFML begins 1/1/25
● Delaware PFML begins 1/1/26
The question for employers is how are they going to manage these leaves? How are leave requests going to be properly captured? Do they have the systems to track and manage these leaves? Have they identified the state leaves that run concurrently with FMLA? What paperwork will be required for these leaves? Who internally will lead the coordination of these leaves?
What happens if an employee also qualifies for a short-term disability policy or is covered under workers’ compensation? What if an employee appeals against a decision? How do your employer’s internal policies coordinate with state leave laws? Have all applicable state leave law policies been developed and made available to employees? How do employees get paid? Do employers contribute to the state to help pay for their employee’s benefit? What about ADA?
There is a lot here, and when employers dig deep into the well of leave laws, it quickly becomes apparent that a centralized and integrated structure is necessary to effectively manage them, achieve reliable employee communications, ensure employee satisfaction and retention, maintain positive morale for all employees, keep productivity high throughout the organization, and help ensure all legal and compliance requirements are being met.
States incorporate tough penalties and consequences for non-compliance. Employers need to have an integrated disability absence management strategy in place and working.
Begin looking at your organization’s absence and disability management structure and ask whether it is working effectively or not. Learn how to design a structure that will address the needs of your employees and organization so that the processes, paperwork, communication, etc. run smoothly throughout the organization.
Another reason to develop an integrated disability absence management program is to help ensure ADAAA (“ADA”) legal compliance. As a result of Covid, many employers became much more acquainted with the ADA when they had to make accommodations for employees that did not want to be vaccinated or had health conditions that put them at high risk, if exposed to others with Covid in the workplace. Covid continues to persist, and for employers, this means they will need to continue to manage employees’ time off for treatment. The CDC has estimated that the proportion of people who had Covid-19 and go on to experience post-Covid conditions can be:
● 13.3% at one month or longer after infection
● More than 30% at 6 months among patients who were hospitalized.
In addition to managing an employee’s time off from work, employers will need to manage accommodations when employees are ready to return to work and that could include managing an employee’s request to work remotely. While working remotely was popular during the Covid pandemic, it continues to remain popular with employees. What should an employer do when they need employees to return to the workplace to perform their work and an employee requests an accommodation to work remotely due to a disability? Answer: Under the ADA, covered employers are required to help determine and provide effective, reasonable
accommodations for employees with disabilities and to help determine effective accommodations.
The EEOC recommends employers engage in an interactive process. The interactive process is a step-by-step process in which employers and employees with disabilities, who request accom modations work together to determine reasonable accommodations. There are six steps in this process, and they include:
● Step 1: Recognizing an Accommodation Request
● Step 2: Gathering Information
● Step 3: Exploring Accommodation Options
● Step 4: Choosing an Accommodation
● Step 5: Implementing the Accommodation
● Step 6: Monitoring the Accommodation
These steps may seem easy, but in fact, there is a great deal to learn and understand about each. Knowing how to skillfully maneuver through each step and properly document the process will increase the likelihood of success for both the employer and the employee. Identifying, selecting, and training appropriate staff to manage this process or utilizing external third-party ADA specialists should be part of an effectively designed integrated disability absence management program. Legal issues can quickly arise if the ADA interactive process is not well managed.
There is no doubt that the area of disability absence management continues to evolve and increase in complexity. It infiltrates and impacts almost every aspect of an organization’s operations from productivity, quality, safety, employee engagement and satisfaction, financials, performance, morale, and legal. The solution is an employer-specific, wellthought-out, and fully-integrated disability absence management program.
● https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/ subchapter-C/part-825 - FMLA Regulation
https://www.congress.gov/bill/117th-congress/senatebill/1158 - Congressional bill example
● https://www.cdc.gov/coronavirus/2019-ncov/long-termeffects/index.html - Number of long COVID cases
● https://askjan.org/topics/interactive.cfmInteractive Process
● https://www.oregonlegislature.gov/bills_laws/Pages/ORS. aspx; https://www.oregonlegislature.gov/bills_laws/Pages/ Oregon-Laws.aspx; https://paidleave.oregon.gov/Pages/ default.aspx – Oregon Paid Leave
● https://www.leg.colorado.gov/sites/default/files/other_ state_pfml_laws_memo.pdf - Colorado State Paid Family and Medical Leave Law
● https://mgaleg.maryland.gov/mgawebsite/Legislation/ Details/SB0275 - Maryland Paid Family and Medical Leave Law
● https://legis.delaware.gov/BillDetail?LegislationId=79186 –Delaware Paid Family and Medical Leave Law
Ann Kuzee, SPHR, SHRM-SCP, serves as LifeWorks’ primary legal representative for its U.S. Absence & Disability Management division, a role in which she interprets regulations and other laws related to Federal, State, and Municipal leaves. She oversees, directs, and manages the delivery of in-house and outside legal counsel services related to Federal, State, and Municipal leaves. Would you like to comment?
More than 90% of employees say the pandemic has changed their life-work development in some way. Meanwhile, HR departments have been a focal point for connecting and supporting people in the light of vast changes that may be becoming perma nent.
Is your business equipped with the best possible tools to keep up? Learn more about Life-work tech nology and the benefits UKG solutions can offer for getting the most from your people while supporting them on their journeys. Learn more.
Our relationships with “life” and “work” are compli cated.
This is clear from the evolution of the term “worklife balance”. Countless variations have made headlines during the past four decades: work-life negotiation, work-life integration, work-life synergy, and more. Our concepts of life and work evolve, and our technology needs to evolve with it.
Never has this been more apparent. As our world reels from a global pandemic amid economic, social, and environmental uncertainty, business and HR leaders are exhausted. So is everyone else. A mountain of research suggests life-work dissat isfaction played a leading role in the Great Resig nation, crippling many companies and industries
as they have struggled to operate and provide the salaries the “market demands.”
And so, while we certainly need technology tools to attract and retain talent for this current crisis, the truth is that we need much more than that. We need solutions that are truly people-focused, that are lifeaware, that support team members holistically both at work and in their personal lives. If history has taught us anything, it is that technology in service of business often comes at the expense of people. The time has come to refocus technology on help ing people, which positively impacts the business.
Most business leaders do not consult macro-level historical trends when making key decisions. As humans, we are also prone to a recency bias, believ ing that everything has always been as it is now. It is easy to forget that there is a fascinating history to this thing we call work. So how did the modern workday come about? And what have we learned about work from these key moments in history?
For most of modern humankind, there were no “jobs.” People worked, of course; survival required hunting, foraging, outrunning predators, and con stantly moving as part of a nomadic lifestyle. But these everyday responsibilities were basically “life.”
Current anthropologic studies show the average male spent 5.3 hours per day hunting and foraging,
tasks that were largely leisurely and communal in nature. (Hunting is about 10 parts watching and walking to one part chasing and killing.) These cul tures give us a pretty good glimpse into what this elusive “balance” looked like for our ancestors.
This changed when the Neolithic Revolution began. Over the course of hundreds, if not thousands of years, humans learned to farm by domesticating plants and animals for food. This promise of a reliable, stationary food source allowed permanent settlements, and population grew quickly.
It is not an exaggeration to say the invention of ag riculture changed everything, including introducing the concept of “work.” Work became more than a combination of daily tasks ensuring survival; people now had specialized jobs that distinguished them from their peers and provided skills or products that could be bartered or sold.
People began working longer hours than they had in their hunter-gatherer days, and the first seeds of social class division and wealth disparity were sown. Thousands of years later, this segregation
led to the “working class,” the “elite,” and enslaved labor. For those in the middle—the more affluent working class, like shop owners and artisans—it is estimated that many worked a 6-hour day.
Read the complete article here
As Senior Manager of HCM Research and Advisory, Karina Monesson supports UKG’s thought leadership research strat egy and partners closely with business leaders to help them maximize the value of their people and technology invest ments. A former journalist and market researcher, Karina speaks regularly with conference and customer audiences about HCM trends and best practices, and her work has been featured in Forbes, SHRM, HR Dive, HR Executive, HR Daily Advisor, and Human Resources Today. She is passionate about leveraging research, data, and technology to improve peoples’ lives and drive systemic change.
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HR solutions that will keep your people happy.
Mount Street was originally founded in 2012, in London, UK. They provide services and products across the credit, real estate-backed, asset-backed, and structured finance markets in EMEA, the U.S., and Australia.
Over the last eight years, they have become Europe’s largest third-party servicer of commercial real estate lending and shipping debt. For Mount Street, the future is borderless as they discover new opportunities to grow and expand their team.
How a Leading Financial Firm Uses a Trusted Employer of Record to Expand Globally
Making the Impossible, Achievable:
Mount Street was determined to hold on to its key resources while embarking on the journey of employee relocation and global expansion.
“We learned about Globalization Partners just after we opened up our office in Sydney, Australia. I believe that if we had known about you beforehand, we would have done it differently. And that’s been a real learning experience,” said Christa Simp son-Wong, Executive Director, Human Resources at Mount Street Portfolio Advisers GmbH.
When looking to expand into new territories, Mount Street was concerned with any permanent establishment (PE) issues, partic ularly for territories like France and Italy. PE varies from country to country, but ultimately determines whether a company crosses the line from sporadic business proceedings to permanent ones, which are then taxable.
Having the freedom and capability to relocate their employees and grow their teams compliantly while avoiding PE challenges was critical for Simpson-Wong and her team. They were able to accomplish this by partnering with an Employer of Record with a wide breadth of experience, Globalization Partners.
With Globalization Partners, Mount Street was able to view international growth as a strategic opportunity rather than an employee challenge. Understanding the employment rights, legislation, tax laws, and payroll compliance requirements for each country was a massive undertaking. Mount Street trusted Globalization Partners, established Employer of Record, to walk them through this complicated process.
“It was only through a conversation that we had with our lawyers, Littler, that Globalization Partners name came up as a possi ble solution to a strategic move we were trying to find a solution for. We quickly realized that what you were offering could be a feasible possibility, and that going forward ‘this really could solve so many concerns’,” added Simpson-Wong.
Working with Globalization Partners has allowed Mount Street to successfully relocate one of their key employees from the UK to France. Additionally, it has opened new doors for global business growth, which previously wouldn’t have been an option for Mount Street.
“Stephan Plagemann, our Managing Director and Chief Financial Officer for Mount Street, sees the partnership with Globalization Partners as a great opportunity for Mount Street to no longer view a country as a road block for the Company’s continued expan sion. Through our recent experience working with Globalization Partners we are much more confident about what we can do and be confident that it will be done right,” explained Simpson-Wong
The Mount Street team now has the knowledge and support needed when hiring or relocating their team globally.
“As a result of the pandemic, the world has proven that you don’t have to be in an office to work cohesively and productively, and I think that’s what we will take forward. We can then work with Globalization Partners on what our future expansion will be and maximize on the opportunities we create,” said Simpson-Wong.
Mount Street saw an opportunity to lift the constraints of their home market and become borderless. Using one partner with global HR and compliance expertise, they expanded their company footprint internationally.
“This is really a great opportunity for us to partner with you … this is something that when we’re looking to expand or looking to move into different areas, it should actually be one of the first things we consider rather than the expense and layout of setting up an actual office.”
From the beginning, Mount Street was determined to retain their top talent during the international expansion process.
“One of our employees moved from the UK to France. We knew if we were to lose him, we were going to have to try and backfill his role but we would not be able to find and replace the experience and knowledge that he possessed, that was just not possible,” said Simpson-Wong.
Simpson-Wong is excited for what the future holds. This year, Mount Street are working on initiatives in Shipping Brokerage, Aviation, and Renewable Energy industries. Their collaboration with Globalization Partners will make their international business growth a hassle-free journey.
Simpson-Wong and her team are delighted with the progress they’ve made through the support of Globalization Partners and would recommend an EOR partnership to any company with expansion aspirations.
“Be open to suggestions, opportunities, new solutions and don’t always go with just what you know. Have you thought about Glo balization Partners? Because I can list all the benefits as to why you would want to partner with them.”
North America: info@globalization-partners.com Europe, Middle East, and Africa: info-emea@globalization-partners.com Asia-Pacific: info-apac@globalization-partners.com globalization-partners.com
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Acompany's management team is entrusted to oversee day-to-day operations including, but not limited to, internal workplace issues, such as compliance with a number of employment-law related statutes and regulations.
Key experience in these areas is essential to properly mitigate
against a company's potential exposure. As of August 2022, while the unemployment rate in the United States rose to 3.7%, the labor force participation rate also increased slightly.1
What is concerning is that given the recent tight labor market,2 many companies and small
businesses are being forced to hire inexperienced employees to fill such senior management positions, which undoubtedly will lead to potentially significant exposure for these organizations.
Generally, management positions should be filled by individuals, who have the proper training
managers should receive training in the federal and state laws that apply to the company’s business
and experience in the industry so that they can avoid legal pitfalls under relevant state or federal laws. Managers may be responsible for making decisions, creating efficient processes, and motivating their teams to perform at their best.3
Perhaps one of the most important roles of being a manager is ensuring that the company is complying with its legal obligations as they relate to employees.
For example, depending on the number of employees a company has and whether its employees are eligible, the company may be bound by several federal laws: (1) Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination against employees based on several protected classes, including race, sex, and religion;4 (2) the Family and Medical Leave Act (“FMLA”), which allows employees
to take unpaid family or medical leave with continued health insurance coverage;5 (3) the Fair Labor Standards Act (“FLSA”), which requires employers to pay minimum wages and overtime pay;6 and (4) the Occupational Safety and Health Act of 1970 (“OSHA”), which prescribes certain minimum safety and health standards for workers.7
of its employees; and general negligence, including negligent hiring, retention, or supervision, which requires a company to exercise a certain standard of care in all its business, including in hiring and supervising employees. And while not every state may have codified laws on certain topics, companies should also ensure that they have adequate policies in place for other areas that may lead to litigation, such as employee management of funds; bookkeeping and document retention; mental-health policies; and cybersecurity and data breaches.
Aside from these limited examples of federal laws, each company will be regulated by its own state’s laws. If the company has employees working in several states, the company should be advised that it may also be bound by several states’ laws, which may sometimes conflict with each other.
A manager should also be aware of some other general legal principles found across all states’ laws: respondeat superior, which is a theory that allows a company to be held liable for the negligence
Consequently, managers should receive basic and, ultimately, advanced training in the federal and state laws that apply to the company’s business. As best practices, managers should have a general understanding of which employees are eligible under which laws, whether the company has a required reporting process for alleged legal violations, how the company investigates and ultimately deals with employee reports or grievances, and a follow-up process with employees to assuage their concerns.
Without this proper training—or without the experience in how these polices work as a practical matter—managers risk exposing the company to liability for failing to comply with the law or for having inadequate safeguards in place.
Even if the manager is not the proper person to address employees’ complaints, the
manager should be able to direct employees to the proper point of contact. Though not feasible for small businesses, if possible, more than one manager should be well-versed in the fundamental basics of the company’s legal obligations, either through the company’s own legal department or by outsourcing the training to some other entity that can provide adequate training.
Senior executives should also establish checks and balances on managers’ duties. When employees face a problem in the workplace, they are much more likely to go directly to a supervisor than to executive management. In fact, it’s possible that executive management may never hear of certain employee complaints.
Although senior executives need not be informed of every single complaint occurring in the company’s day-to-day affairs, they should establish a clear line
of communication that ensures that management is properly performing its role in the legal context.
For example, during performance reviews, managers themselves may be evaluated on their ability to stay current on legal developments that affect the employees. If managers have already been hired without the ideal level of experience, then senior executives should budget for in-house or outsourced courses or programs to train managers on the basics of legal compliance in the industry. Lastly, senior executives should focus on prevention, not just correction, of legal issues. Potential legal blind spots should be assessed before a problem arises, and managers should likewise notify senior executives when they see potential areas of concern.
While these steps may seem costly at the outset, they will likely
save the company hundreds of thousands of dollars in the long run in avoiding legal judgments.
1. See U.S. Dep’t of Labor, The Employment Situation – August 2022, Bureau of Labor Statistics, https://www.bls.gov/news. release/pdf/empsit.pdf (last visited Sept. 19, 2022); Jason Furman & Wilson Powell III, A Tight US Labor Market Stays Tight, Peterson Institute for International Economics (Sept. 2, 2022, 11:30 AM) https://www.piie.com/blogs/ realtime-economic-issues-watch/ tight-us-labor-market-stays-tight.
2. See Furman & Powell III, supra note 1.
3. Tim Stobierski, 5 Key Benefits of Enrolling in a Management Training Course, Harvard Business School Online (Jan. 16, 2020), https://online.hbs.edu/blog/post/ benefits-of-management-training.
4. 2 U.S.C. § 2000e, et seq.
5. 29 U.S.C. § 2601, et seq.
6. 29 U.S.C. § 203, et seq.
7. 29 U.S.C. § 651, et seq.
Paul O. Lopez is a Director and COO of Tripp Scott. He has more than 30 years of experi ence in commercial litigation and advises business owners, HR executives and compli ance regulations on labor and employment laws.
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Jennifer H. Wahba, an Associate with Tripp Scott, focuses her practice in labor and em ployment, complex commercial and business litigation, general civil litigation, and appeals.
By Sasha Ramani, MPOWER Financing
Recently, Brad Chattergoon announced on Twitter that despite earning his degree in the U.S., he is seeking employment in other locations, such as Canada and Australia. Why isn’t he looking to continue his career in the U.S.? The Harvard, Yale, and Caltecheducated data scientist was not selected in the U.S. H1-B visa lottery, and will take his valuable skills and experience abroad rather than contribute to the American economy.
Brad’s story is common. International students earn about a quarter of all science, technology, engineering,
and mathematics (STEM) degrees issued by American universities, and pursue STEM fields at significantly higher rates than their American counterparts. Even though these graduates are highly coveted by American employers, student visas only allow them to stay in the U.S. for up to three years after graduating.
We should strive to support skilled graduates like Brad by enabling them to stay in the United States, especially when they can meet a critical need or gap in our local economy. An analysis by the National Foundation for American Policy found that the
The U.S. can benefit tremendously by allowing talented immigrants to stay
majority of billion-dollar American firms were founded or co-founded by immigrants or their children and that more than 75% of American unicorns (privately held billion-dollar firms) were either founded by an immigrant or currently have an immigrant in a key leadership role.
This includes the founders and leaders of famous U.S. tech companies, such as Sundar Pichai (CEO of Alphabet, Google’s parent company), Elon Musk (CEO of Tesla and SpaceX), and Satya Nadella (CEO of Microsoft), who combined their ambition and skills to create and lead successful companies.
In our current labor shortage, reforming immigration is vital to overcoming supply shortages in several sectors and in mitigating inflation. Though the U.S. labor shortage has touched and affected every industry, technology fields have been hit particularly hard. This trend was exacerbated by the effects of the Covid-19 pandemic, which further limited American firms’ access to skilled foreign workers.
The United States has the opportunity to learn from other countries that have considered more flexible paths to success for talented data scientists like Brad.
The United Kingdom offers a High Potential Individual visa stream that allows graduates from the top 50 non-British universities worldwide to stay and work in the United Kingdom, and Canada’s Express Entry allows skilled professionals to receive an invitation to apply for Canadian permanent residence.
In the United Arab Emirates, a Golden Visa enables graduates of the world’s top 100 universities to apply for a long-term (up to 10 years) visa, while Taiwan offers a Gold Card program designed to attract experts in key fields (including science and technology) and Singapore recently launched a similar Overseas Networks and Expertise pass.
In each of these programs, the candidate has the option to renew their visa or apply for permanent residence immediately, thereafter.
With so many other countries trying to attract the Brads of the world, the U.S. will fundamentally be unable to attract and retain global talent without
immigration reform. The United States should work to celebrate, retain, and attract skilled graduates of our universities, like Brad, enabling their talents, abilities, and skills to be integrated into our economy.
To start, the U.S. should increase immigration streams, visa quotas, and visa lengths for skilled workers and graduates of American universities— especially those with high-demand STEM skills. This would give American tech giants and other key industries the access and ability to hire the brightest minds from around the world.
Employers do not have to scour the world to find its brightest minds - over a million of them are currently on American college and university campuses. To create a more seamless path from graduate programs to U.S. employment, Congress should extend the duration of Optional Practical Training (OPT) and Curricular Practical Training (CPT) for international students, and exempt those with in-demand STEM degrees from Green Card caps and the H1-B lottery.
Removing randomness from deciding who gets to stay in the U.S. would be a substantial improvement and enables more strategic decisions about our economic and immigration policies.
These crucial changes to our immigration system would be exponentially beneficial to the United States, and would position us to mitigate gaps in numerous key industries. We need Brad and his classmates here - so let us find a way to keep them.
Sasha Ramani is the Head of Corporate Strategy for MPOWER Financing.
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With the signing of California Senate Bill (S.B.) 1162 on September 27, 2022, the nation’s most populous state joins the growing list of jurisdictions mandating increased transparency around pay. What does this law mean for employers—in California and elsewhere—and how does it impact the future of pay equity?
In 2021, Colorado became the first state in the nation to require employers to include pay ranges in job
postings. Other jurisdictions, including Washington state (effective 1/1/2023) and New York City (effective 11/1/2022), soon followed suit. And in another handful of locations, although employers are not required to list pay information in a job posting, the employer must provide it to an applicant during the hiring process.
These disclosure requirements aim to advance pay equity by giving applicants and employees more informational leverage. The idea is that individuals,
who have been underpaid in the past—often women and people of color—may accept a lower salary if they lack the context about the employer’s pay practices to assess the fairness of an offer.
Without transparency around pay, employers have a massive upper hand in this dynamic. Although employees may be able to conduct some research about typical compensation in a particular role, finding accurate data is difficult—a difficulty compounded by the many variables that can influence pay, such as location and experience levels.
And there is little incentive for an employer not to lowball. After all, a candidate may accept the lower offer. Even if the candidate does negotiate for a higher salary, psychological anchoring effects make it likely that the final negotiated salary will be lower than it would have been with a higher initial offer.
Of course, this pattern, repeated many times over, is one source of systemic pay disparities, both within individual organizations and in the labor market as a whole. Transparency laws aim to counteract that trend.
California’s S.B. 1162, which takes effect January 1, 2023, requires employers in California with 15 or more
employees to include a position’s pay scale—defined as the salary or hourly range the employer reasonably expects to pay for a position—in any job posting. An employer using a third party, such as a recruiter or job search board, to publish or announce a position must provide the pay scale to the third party, which must then include that information in the posting.
In addition, all employers, including smaller employers not covered by the job posting requirement, are required to:
● Provide the pay scale for a position to an applicant applying to that position upon reasonable request; and
● Provide the pay scale for an employee’s current position upon the employee’s request.
The law has teeth: employers that omit pay information from a job posting may face civil penalties between $100 and $10,000 per violation. However, an employer’s first violation will not trigger monetary penalties if the employer demonstrates that all job postings for open positions have been updated to include the required pay scale information.
Since 2021, many California employers have been required to submit an annual report each year listing
pay bands and job categories for employees broken down by race, ethnicity and sex. S.B. 1162 makes a variety of changes to this process, some relatively minor and technical and others more significant.
Key changes include:
● Expansion of employer coverage. When the law takes effect, all California employers with 100 or more employees will be required to submit annual pay data reports. Previously, employers that were not required to file federal EEO-1 Reports were exempt.
● Separate report for employees hired through labor contractors. Employers with 100 or more employees hired through labor contractors within the prior calendar year must submit a separate report covering these employees.
● New deadline. Beginning in 2023, the submission deadline will be the second Wednesday of May each year.
● New data fields. Covered employers must calculate a mean and median hourly rate for each combination of race, ethnicity and sex within each job category (e.g., non-Hispanic Black women in the professional category).
● Civil penalties. An employer that fails to file the report may be fined up to $100 per employee on a first offense, and up to $200 per employee for a subsequent violation.
As recent developments suggest, the push for transparency is not going away. Employers, therefore, should take proactive steps to identify and address pay inequity and develop a solid strategy to implement pay transparency—even if not currently required to do so by law. For an employer with a solid pay equity strategy, transparency is nothing to fear and can even be a selling point.
Steps to take now include:
● Conduct a pay equity audit. A pay equity audit is a systematic way of identifying employees whose compensation falls below the expected
level based on factors, such as the employee’s tenure, job performance, and responsibility level. It is a good idea to involve legal counsel when conducting an audit to evaluate risks and determine whether the audit can be privileged.
● Develop a plan to act on inequities. Depending on the scope of the disparities, an employer may choose to adjust the salaries of underpaid employees all at once or more gradually. Either way, it is important not to delay too long: an employer that conducts a pay equity audit and does not take reasonably prompt steps to correct disparities may find itself faced with a pay discrimination lawsuit.
● Create a salary structure for the organization. If an employer has taken a more ad hoc approach to pay structure in the past, it should consider developing a consistent framework for pay that captures the roles in the organization and identifies an appropriate pay range for each.
● Prepare to list pay ranges in job postings. Along with a reasonable range, it is a good idea to include information about what factors—such as relevant experience or credentials—will impact where a given candidate falls within the range.
Emily Scace is a Legal Editor, who covers employment discrimination and harassment, recruiting and hiring, and workers’ compensation for XpertHR.
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This coming February marks the 30th anniversary of the Family and Medical Leave Act (FMLA). Over the past 29 years, FMLA has had a significant impact on providing employees
unpaid job protection so they can take leave to deal with personal and family issues.
While it has been a game-changer for workers, businesses, and our
society, as FMLA approaches 30 it is an opportunity to take stock and assess - see if it can adapt to our ever-changing workplace.
“When you’re 30 you’re old enough to know better, but young enough to go and do it.” Bridget Bardot
as t he Fmla approaches 30, is it showing its age?
Since its enactment in 1993, FMLA has provided up to 12 weeks of job-protected leave of absence per year for an employee to care for a serious health condition impacting the employee or a family member, bonding with a new child, and tending to matters related to a family member’s active-duty deployment.
The law and corresponding regulations have gone through two major revisions since then, but no major changes have been made in more than 10 years. Yet, spurred on by technology, a changing workforce, new state leave laws and of course a pandemic, there has been a dramatic evolution in how, where and when we work. And these changes have led to legitimate questions as to how to apply FMLA.
These include fundamental definitions of key components of FMLA. For example, a “family” is much different today than it was 30 years ago. As a result, increasing numbers of employees have caregiver responsibilities –children, elderly parents, siblings and their children and others. The legal protections outside of the FMLA for caregiver employees are broad and numerous and growing every year. While some employers have implemented familyfriendly policies and benefits to assist employees dealing with caregiver responsibilities, there remain significant administrative challenges and questions for both employers and employees on how to properly apply FMLA to a growing list of potential family members.
Similarly, there are questions about what constitutes a serious health condition. Generally,
cosmetic surgery is excluded, but what if such surgery uncovers a serious illness or is part of treatment and/or recovery? And many employers erroneously read the exclusion to apply to any elective procedure even though the FMLA has no such limitation. While no law can ever provide a comprehensive list of health conditions, greater guidance beyond one-off litigation is necessary to provide clarity.
Likewise, the changing nature of how and when an employee works has clouded application of the FMLA. Questions abound regarding how to properly calculate a work week and determine the leave entitlement for an employee working remotely with no set hourly schedule – a situation far more common today than before March 2020.
Thirty years later there even remains confusion on the process to properly certify a leave request. For example, when is an employer justified in requiring a second (or third) opinion to confirm the validity of the health care provider’s original certification – the term “validity” is never defined in the regulations! Moreover, the regulations hint but never state that an employer can request a second opinion only prior to the initial approval of leave, and then not again until the annual certification.
While FMLA provides job protection for medical leave, it doesn’t require that leave to be paid. Every year for the past several, federal paid leave laws are proposed in Congress. However, despite favorable popular opinion, the passage of a national paid leave law remains elusive for a number of reasons, and prospects remain bleak in the foreseeable future. In the meantime, states, municipalities, and corporations have stepped into the breach to provide paid medical and family leave laws and policies. While this certainly benefits employees and families in a covered jurisdiction, it has created a tangled web of confusing and conflicting regulations for many employers.
In fact, in some cases, state laws can actually undermine FMLA as they may provide more flexibility to workers to take paid leave for reasons or durations that supersede those covered by FMLA. For example, many state leave laws include “safe leave” when the employee or a family
member is the victim of domestic violence and allow an employee to take leave to care for a broader spectrum of family members than the FMLA’s parent, child, or spouse. Ultimately, FMLA is not a choice – it is a law that must be followed by both employer and employee to assure protection.
hints at how to administer FMLA properly overall.
Despite favorable popular opinion, the passage of a national paid leave law remains elusive for a number of reasons, and prospects remain bleak in the foreseeable future.
No law is perfect, and it is unlikely that any updates to FMLA or its regulations, whether providing for paid leave or not, will answer every question and clarify every issue. But without legislation or regulations that conclusively clarify the most basic of FMLA issues, employers and employees will be left trying to navigate FMLA without adequate guidance. And that’s only good news for employment lawyers.
Reaching thirty years is undoubtedly a reason to celebrate. But the FMLA, like all of us, must evolve to avoid losing its relevance as the years pass.
But many state laws allow the employee to choose whether to use the job protected and/or paid leave or save it for a later event. The mishmash of leave laws, each with unique definitions of covered populations and leave reasons, makes administering FMLA together with other laws costly and time-consuming.
Because the law has not been amended in recent years employers and employees must rely on the courts or opinion letters from the Department of Labor to provide guidance on some of the most basic tenets of the law. However, each case is unique and can only provide
Marti Cardi is Vice President –Product Compliance for Matrix Absence Management. She is responsible for ensuring that Matrix’s absence management and accommodation services for outsourcing employers are offered in compliance with applicable federal and state laws and industry best practices. Marti is a frequent speaker and recognized industry expert and thought leader and is the founder, lead author, and executive editor of Matrix Radar, an industry blog on absence and benefits. Would you like to comment?
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