Qualities of a Great Manager
New Year, New Policies: What Should You Be Aware of?
Benefits of Outsourcing Human Capital Management
How Payroll Software Can Improve Effectiveness for Small Businesses
Big Changes Happening Here
We have some exciting changes taking place at Payroll Experts. We are now officially renaming to PayLogics. Your same amazing payroll service that you have known and loved is still here, but PayLogics gives us the opportunity to offer even more to you. In addition to our already excellent payroll service, we are working to expand some of our other services. Some of you may know that we have offered some of these services in addition to payroll, but for those of you who don’t know, here are some services we will be expanding in the future: time tracking, benefit management, background checks, applicant tracking, retirement management, and more. Over the last 18 years of service we have learned that your relationship with your employees is about much more than just payroll.To help service that relationship we want to provide a complete employment experience for your business. A note from our owners: “Time has been a great teacher for us at PayrollExperts. We are extremely grateful for all those who have paved the path we have walked and treasure our friendships we have created with thousands of inspiring businesses. We have learned a lot and have come to understand that the employee/employer relationship is about far more than just payroll. Our passion is burning brighter than ever to be your complete Employment Experience Experts. We are thrilled to be introducing PAYLOGICS to the marketplace, a new addition to the Payroll Experts umbrella, our faces and names will stay the same but we will be introducing the “LOGICS” to better connect employees and employers through engaging interactions and empowering solutions.” We are so grateful for all of our clients who have loved and supported us over the 18years of our business, but we are also very excited for all of the companies we will continue to help with these added services. We know that this move will allow us to be come a much bigger resource to our already dedicated clients. If you have any questions about our expanding services, how they can benefit your company, or how Pay Logics service will impact your business, please feel free to email us at email@example.com.
EMPLOYEE USE OF SOCIAL MEDIA: IS IT PROTECTED?
- The comments relate to the terms and conditions of the workplace;
- The employee appears to be acting with or on behalf of other employees.
Generally speaking, employees are not protected by the NLRA when they engage in “individual griping” (rather than interacting with or on behalf of other employees), or denigrate products or customers, or disclose intellectual property of employers or others. However, it is important to note that since this is a new development, NLRB decisions are not always consistent, nor have the courts had the opportunity to rule on NLRB decisions. It will likely be some time before this relatively new development in the law settles down into more concrete principles. In next month’s article, we’ll discuss some of the NLRB’s decisions to get a better sense for what types of employee social media use are protected… and trust me on this, prepare yourselves to be a bit shocked and surprised with NLRB’s reasoning. In the meantime, keep an eye out for me on Facebook as I flame my boss (woops, that’s me!) This article should not be construed as legal advice. Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com Call an HR Attorney as often as you need, for a low, fixed monthly fee! In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates. For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions. Get rid of the attorney’s ticking clock! For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”
HOW TO CONTROL YOUR BUSINESS UNEMPLOYMENT RATE
Of course, there are times when the potential cost of an unemployment claim is insignificant when compared with the financial, emotional or opportunity cost of continuing to employ the individual. Therefore, there are certainly strategic elements to consider in conjunction with these best practices when making termination decisions. This information was provided through our HR Support Center, which can be a valuable resource for you and your business. If you have HR needs that we can help with please let us know.
EMPLOYEE USE OF SOCIAL MEDIA (part II)
Now, let’s take a quick look at some NLRB decisions to get a feel for what they’re thinking (and you’ll notice that some cases go for the employee and some go for the employer): A paramedic vented on Facebook (FB) about her boss after he allegedly denied her the opportunity to seek help from her union before she responded to him about a customer compliant. Among other things she referred to him as a “scumbag” and a “mental patient.” Other employees commented on her posts. NLRB Holding: Concerted activity—her firing violated NLRA. Takeaways: Her references to her union and the comments made by her coworkers on FB helped her case. Remember, just because the employee is “rude and crude” doesn’t mean it isn’t a concerted activity. The NLRB is pretty tolerant of “rude and crude,” within certain limits. A tour bus driver complained on FB about his working conditions (lack of health insurance, minimal PTO, unsafe buses) and praised a competitor as a “workers’ paradise.” His comments included praise for the benefits of labor unions. There is no evidence that his coworkers had access to his FB page. Holding: Concerted activity—his firing violated NLRA. Takeaways: The lack of involvement with other employees (prong #2 above) makes this a curious case, but shows how far the NLRB is willing to stretch things (I don’t think they could bear to not help him out since his comments were so union-oriented). An employee sought assistance on FB from four coworkers to respond to criticism from another employee. She wrote that this employee felt that “we don’t help our customers enough” and posted, “my fellow coworkers, how do you feel?” This resulted in a vigorous discussion on FB (which apparently got pretty intense). Some of the coworkers discussed concerns with employer staffing practices. Five employees were fired for violating bullying/harassment policies (regarding how they responded to the employee who originally made the criticism). Holding: concerted activity—the firing of employees violated the NLRA. Takeaways: Her reaching out to her coworkers to get their input is a strong potential sign of a concerted activity (as is discussing working conditions such as staffing practices). A BMW dealership employee posts picture on FB of a car driven into a pond at a sales event by another employee’s 13 year old son. The employee openly mocked the dealership over it (as well as for the cheap hot dogs they served at the event). Holding: Not a concerted activity—his firing did not violate NLRA. Takeaways: A good example of individual griping not related to working conditions (despite the negative impact that cheap hot dogs must have on any workplace!) Last of all (add this to your list of things not to do): NEVER let your 13 year old son drive an expensive German-built automobile owned by your employer! An employee was responsible to care for homeless people with mental health issues. While working a graveyard shift she conversed with two friends on FB. She commented on how “spooky” it was being alone at night in a mental institution and made unprofessional comments about the mentally disabled clients. A former client of employer saw the postings and complained to employer. Holding: Not a concerted activity—her firing did not violate the NLRA. Takeaways: Statements made about third parties (customers, clients, etc.) often aren’t protected. Worse yet, revealing information about medical patients clearly doesn’t fly, even with the NLRB. A construction contractor fired five employees after several of them appeared in a YouTube video complaining of hazardous working conditions. As the NLRB hearing opened, the case settled, with the workers receiving full backpay. Takeaways: While there was no NLRB decision on this case, it was clearly heading in favor of the employees. This is a good example about how it’s not always about FB, but social media sites such as YouTube could be involved. Could one of your employees walk through your facility and make a movie about it? This could easily happen. At this point, NLRB decisions are still inconsistent and at times confusing (not to mention frustrating). Nevertheless, hopefully the cases mentioned above give a general sense for what is protected and what is not. This area of the law will continue to develop over the coming years, but in the meantime, be sure to use caution when dealing with employee-related social media issues, lest you become the next test case! This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the State of Utah’s “Custom Fit Programs” in Davis County, Salt Lake County and Utah County during February and March of 2014 (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers). Significantly discounted rates are available for “for-profit” employers. This is the same seminar Jonathan presents for major corporations throughout the United States. Click here for details: http://www.jkdlawpc.com/seminars/
PAYROLL DOCUMENT RETENTION GUIDELINES
|Type of Document||Years||Type of Document||Years|
|Accident reports, injury claims, settlements||7||Injury frequency charts||10|
|Applications, changes, terminations||3||Insurance records, group and employee||6|
|Attendance and time sheet records||5||Medical folders, employee||P|
|Disability and sick benefits records||4||Payroll records after termination||P|
|Earnings records||P||Pension plan applications, claims and correspondence||P|
|Employee service records||P||Salary and rate changes||10|
|Employee contracts||7||Performance records||7|
|File for individual employee||3||Withholding exemption certificate||3|
|Garnishments||7||Workers compensation reports||11|
“The following retention periods are general rules or guides for determining how long to maintain important business and tax records. The lists are representative of types of records companies may be required to keep. The lists are not all inclusive, and your business needs may require other records such as advertising, manufacturing, sales and marketing, and transportation and shipping. If you have a tax or business advisor, you might want to have the advisor review your records retention practices.” *Retain for at least four years and preferably seven if space is not critical. Once the period has elapsed, the supporting documents may be discarded, but the returns and W-2s should be retained indefinitely. We all know how long winded the Internal Revenue Service can be. The link to their Record Keeping regulations is http://www.irs.gov/businesses/small/article/0,,id=98575,00.html. In relation to payroll reports and payroll tax reports, the Employment Tax Recordkeeping guidelines are: Keep all records of employment taxes for at least four years after filing the 4th quarter for the year. These should be available for IRS review. Records should include:
Employee and Payroll Records are very extensive and are obviously not limited to the payroll reports and tax filing reports we provide to you. We do have a significant amount of recordkeeping information that you are required to maintain. Over the course of the year, we have provided you with paper copies of the Payroll Reports and Tax Filings that we have done on your behalf. A service that has become very popular among our clients is our Annual RePortfolio CD. Our REPORTFOLIO Service provides you with a CD that is packed with:
- All 2013 payroll reports
- All 2013 tax filings (940 Filing, 941 Filings, State Withholding Filings, State Unemployment Filings, W-2’s, W-3)
- Dozens of additional company and employee reports
- All faxed information submitted to Payroll Experts during the year (such as W-4’s, I-9’s, etc)
The information is organized for quick searchable/printable access in Adobe. The cost is $150 for us to prepare your 2013 information and put it in this electronic format. If you are interested in receiving the RePortfolio CD please contact us. Keeping Payroll and Employment Records is an extremely important aspect of our businesses. While it would be nice to clean out our filing cabinets, we must be careful amid the myriad of federal, state, and local laws that govern employment recordkeeping. If you are not already a Payroll Experts customer, we’d love to help you simplify and save on your payroll processing. Learn more about our Payroll Services. We appreciate and value working with each and every one of you. Thank you for your trust. We are committed to you and your businesses and love seeing the growth and progress of your businesses. We are excited about 2014 and look forward to continuing our work with you.
HARASSMENT ISN’T JUST ABOUT SEX: PREVENTING RACIAL HARASSMENT IN THE WORKPLACE
The large settlements mentioned above provide an important wake up call for employers regarding preventing racial harassment in the workplace. This type of behavior should have no place in our work environments. This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the State of Utah’s “Custom Fit Programs” in Davis County, Salt Lake County and Utah County during February and March of 2014 (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers). Significantly discounted rates are available for “for-profit” employers. This is the same seminar Jonathan presents for major corporations throughout the United States. Click here for details: http://www.jkdlawpc.com/seminars/
PAYROLL TIP: AUTOMATIC GRATUITIES
SHRM Certification & HR MANAGEMENT
SOME THOUGHTS ON EMPLOYEE RELEASE AGREEMENTS (PART II)
By Jonathan K. Driggs, Attorney at Law
Last month I discussed the common practice to having employees sign release agreements in exchange for severance pay. This month, let’s discuss a few more things about how to effectively use these agreements. Outside of the Older Worker Benefit Protection Act—which applies to release agreements for employees 40 years and older who are being asked to waive claims under the Age Discrimination in Employment Act (the topic of discussion for next month), the specific terms for release agreements are not specifically laid out by statute. However, common sense and fair play—in addition to well established principles of contract law—should all be taken into consideration. The courts also recognize that there is a difference in bargaining power between an employer and employee. As a result, they can be pretty quick to void agreements when it appears that employees were coerced into signing or were befuddled by its contents. While a detailed discussion of all of the “do’s and don’ts” of release agreements is beyond the scope of this article, the following are a few important things to consider: Consideration: according to long establish contract law, in order to have a binding contract between parties, each party needs to get something of value beyond that to which they would already be entitled (i.e., “consideration”). Generally, the courts haven’t required this “something of value” to be of a particular amount, or necessarily a large amount. The employee must simply get something of value he or she would not have otherwise received had he or she not signed the agreement. Using bonuses, cash outs of PTO or final wages will not suffice as consideration so long as the employee already has a right to receive these things (which they clearly do at least in the case of final wages). Practically speaking, if the consideration is a very small amount, the employee may not feel it is worth signing the agreement. Confidentiality provisions: Many agreements require the employee to maintain the confidentiality of the terms of the agreement (with allowances for informing their accountant, attorney and close family members, with a requirement that the employee requires these third parties to also not disclose the terms). An employer recently successfully enforced such a provision against a former employee after his daughter announced on Facebook the amount of the settlement between the parties (as well as publishing a few choice words directed at her father’s former employer and stating that the money would allow them to take an European vacation)—resulting in a forfeiture of the $80,000 settlement amount! My, my, my, wouldn’t it have been fun to be a fly on the wall during that daddy-daughter discussion? (and it really is too bad because I hear that Paris is just lovely in the Spring!) Use your leverage to serve your legitimate purposes: We all know it can be frustrating to get departing employees to return company property like laptops and confidential/proprietary documents. Severance agreements can be an effective way to get employees to cough these things up by making their severance pay conditional upon them doing so (unlike final wages, which in many cases must be paid regardless of whether employees have returned company property). And rather than paying out the severance in a lump sum, I often like to spread it out over time (e.g., pay it out according to the same schedule as their regular salary) as an incentive for the departing employees to “behave themselves” for at least the payout period. For example, if you include a non-disparagement provision in the agreement (which, let’s be honest, can be hard to enforce), you can use the threat of cutting off the severance for non-compliance during time of the payout. This can be helpful during the first few delicate weeks or months following the termination when feelings can be especially raw. In next month’s article we’ll discuss the requirements imposed by the Older Workers Benefit Protection Act for releasing age-related claims. This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 21 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com Call an HR Attorney as often as you need, for a low, fixed monthly fee! In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates. For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions. Get rid of the attorney’s ticking clock! For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”
Time & Labor Management Solution: ReadySetWork!
Employment Law: More Employees to Become Eligible for Overtime Pay?
The Executive Branch has Big Plans for the Fair Labor Standards Act
By: Jonathan K. Driggs, Attorney at Law
When I was a kid, David Bowie sang about ch-ch-changes. Well, there is an important change looming off in the distance, one with a potentially meaningful financial impact for employers. With the US Congress tied up in political knots, you’d think there wouldn’t be much activity to report on the federal level when it comes to employment law. However, there is a lot of activity going on but it is not coming from the legislative branch of the government. Rather, it’s coming from the executive branch (i.e., President Obama and the government enforcement agencies he oversees). There is a reason for this: with Congress in gridlock, the executive branch is attempting to move forward it’s stymied legislative agenda by using the authority it has over government agencies. There is nothing unusual about this—both parties do it to some degree when they are in power—but it is probably fair to say that President Obama is more aggressive about using his authority in this way than most of his predecessors. As an attorney who represents and advises employers, my concern is that many business leaders are less aware of what is happening on the regulatory (executive) level than they are on the legislative level. As a result, important changes can be made to existing employment laws without as much awareness from the employer community. Case in point: on March 13, 2014, President Obama issued an important Executive Order (EO) directing the US Department of Labor (DOL) to review its regulations regarding which employees may be treated as exempt from overtime pay under the Fair Labor Standards Act (FLSA). The FLSA is our main federal wage and hour law and it has been around for a very long time (since 1938). It sets standards for minimum wage and overtime pay (including exemptions from overtime pay). The DOL has the authority to enforce the FLSA and to issue regulations interpreting the finer points of the law—including setting many of the specific requirements for the oft-used “white collar” exemptions (i.e., executive, administrative and professional exemptions). These regulations have a major impact on how the law is interpreted. President Obama’s specific charge to the DOL is to revise the regulations so that more employees will be eligible to receive overtime pay. Once finalized, it will cost more to employ certain types of employees. While it is still unclear exactly what changes will be made, at least two things are likely to happen: Job duty requirements for exemption status will become more strict. Examples could include additional requirements on what type of work does and does not qualify as supervisorial, thus narrowing the executive exemption. It is also possible that requirements may be imposed about the amount of exempt level work an employee must perform each week to qualify for the exemption (e.g., at least 20 hours or 50% of work time). It is clear that one of the intentions behind President Obama’s EO is to establish once and for all that many of the low level supervisors found in the restaurant (fast food in particular) and retail industries must be treated as non-exempt. In other words, they’re targeting the more “borderline” professional-level employees.
- The minimum salary requirement for exempt status will be raised. In order to be exempt under the white collar exemptions, employees must currently receive a weekly salary of at least $455. A very easy way to limit the use of white collar exemptions is to raise the weekly salary requirement. Probably the only real question is how high the DOL will try to raise it. There are all sorts of rumors circulating, but we simply won’t know until the new regulations are finalized. While such changes are well-intentioned, the increased cost of labor will result in fewer employment opportunities being available (the more expensive you make employment, the fewer employment opportunities there will be).
So, now that the EO has been issued, where do we go from here? The DOL will issue proposed regulations and then give the public time to comment (and yes, your comments are important!) The DOL will then review the comments, make the changes they want to make, and then seek approval of the final regulations through the Office of Management and Budget. While lots of things could happen in the meantime, I don’t suspect the process will be derailed. The estimates are that it will take 12 to 18 months to go through the rule-making process. To be clear, I am not automatically opposed to making changes to the FLSA. However, as we make more lower-level employees non-exempt, I wish we could update the FLSA to bring it into the 21st Century to more accurately reflect the realities of our modern workplaces (e.g., there are some genuinely professional-level workers who cannot be treated as exempt because the law didn’t comprehend their existence when it was written 75 years ago). Nevertheless, employers should stay tuned for some important ch-ch-changes coming down the road that could have a meaningful fiscal impact. This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 21 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com Call an HR Attorney as often as you need, for a low, fixed monthly fee! In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates. For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions. Get rid of the attorney’s ticking clock! For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”
WRITING JOB DESCRIPTIONS
For example, suppose you were planning to fill an open position. Without a current job description, how would you be able to tell candidates what they will be doing or find candidates with the right skills? How do you know if your salary range for the position will entice the talent you need? How do you determine if the position should be exempt or non-exempt? How do you describe success in the position without knowing the performance standards? These are just a few of many questions a well written job description can answer. When researching data about positions and creating job descriptions, you’ll find that one of your best resources is found on O*Net: http://www.onetonline.org/. Not only can you find comprehensive information about tasks, job specifications, and related occupations, but also you have access to wage information and can create custom descriptions with just a few clicks. Creating accurate job descriptions can be simplified by taking advantage of online resources. Writing job descriptions may not be fun, but the benefits are great. If you haven’t updated your job descriptions recently, consider the value to your organization of doing so.
CONDUCTING CRIMINAL BACKGROUND CHECKS (Part III)
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence;
- The nature of the job held or sought.
As explained in its recent guidance, the EEOC expects employers to do the following when conducting CBCs:
- Develop a “targeted screen” using the three factors listed above for the job in question. The EEOC wants employers to identify in advance the type of criminal convictions which might be problematic for a particular position. For example, for a position that has access to sensitive financial information, an employer could identify a list of basic categories of theft/dishonesty-related crimes that would be problematic (e.g., identity theft, fraud, burglary). The employer should then determine the relevant time period to consider for past convictions (e.g., five years, etc.) While there is no specific formula to use, the EEOC is clearly signaling that it will scrutinize time frames carefully in favor of applicants (including reviewing recidivism data to determine when an individual is no more likely to recommit the crime compared to the average citizen).
- Conduct an individualized assessment prior to screening out. Let’s say that a candidate’s CBC for a financial position reveals a conviction three years ago for identity theft. Before excluding the candidate from consideration, the EEOC expects the employer to: 1) provide notice to the candidate that he/she may be screened out because of the conviction, 2) provide the candidate an opportunity to demonstrate that the exclusion should not be applied due to his/her particular circumstances; and 3) consider whether the additional information provided by the candidate warrants an exception. Employers should create and retain appropriate documentation of their individualized assessment processes (as a result of this new guidance, I believe that such processes will be a major focal point of EEOC investigations).
It is not possible in a forum like this to explain all of the nuances related to the EEOC’s CBC guidance. For employers using CBCs, it is worth taking a look at the guidance and reading through the examples. The guidance can be found at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm While it is important to understand that the EEOC’s guidance does not currently have the force of law—and aspects of it will most certainly be challenged in court—the EEOC will nevertheless be the first decision-maker to rule on these cases (employees must file with the EEOC before going to court). So, unless an employer wants to be the “test case” and spend lots of money and time fighting the EEOC, it’s best to give serious consideration to the EEOC’s position on CBCs. In light of this new guidance from the EEOC, the following are some do’s and don’ts for employers when using CBCs:
While running CBCs has become more complicated for employers, this does not mean that there aren’t a lot of legitimate uses for them. Employers who provide services to children, at-risk adults, medical patients, etc., typically have very legitimate reasons to use CBCs. So do many other employers who have employees working in other sensitive jobs or industries. The issuance of the EEOC’s guidance should not be construed to mean that employers can’t use CBCs anymore. Employers, however, should use CBCs in a manner that is… (everyone repeat after me!) “job-related and consistent with business necessity.” This article should not be construed as legal advice. Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com Call an HR Attorney as often as you need, for a low, fixed monthly fee! In partnership with Payroll Experts, Jonathan is offering his “HR Legal Compliance Service” to Payroll Experts clients at discounted rates. For a low, fixed monthly fee, you can call Jonathan as often as you need to get answers to your HR legal compliance and employee relations questions. Get rid of the attorney’s ticking clock! For more information, please contact Payroll Experts at (801) 221-3732 and ask about the “HR Legal Compliance Service.”