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Paragon Business Services - November HR Advisor Newsletter
We wish you a successful start to the holiday season. Visit your HR Support Center today to stay updated on year-end changes and/or legislation that may impact your business.
Election Day. As a reminder, November 6, 2012 is Election Day. Employers are obligated to allow registered voters to cast a ballot in accordance to state voting leave laws. It is recommended employers request a “proof of receipt” from their employees who choose to vote, in order to have documentation on file verifying the employee’s leave was in fact for this purpose.
Comment Period for E-Verify Program. On September 11, 2012, U.S. Citizenship and Immigration Services (USCIS) announced a sixty (60) day period for submitting comments regarding the E-Verify program. Feedback regarding this program is highly encouraged and will be accepted until November 13, 2012.
New Retirement Plan Fee Disclosures. The Department of Labor (DOL) published final regulations requiring certain retirement plan service providers to furnish fee-related information to the plan administrators of the defined benefit and/or defined contribution plans to the organizations with which they contract (the service-provider rules). In conjunction with the publication of the service-provider rules, the DOL confirmed a revised effective date for the final regulations requiring plan administrators of participant-
Leave of Absence Terminations
Many times employers are hesitant to take action when an employee has been on an extended leave of absence due to a workers’ compensation claim arising from an injury or illness occurring while in the course of work duties or when the employee is unable to return from a protected leave, such as the federal Family Medical Leave Act (FMLA), or a state’s equivalent leave. Employers must look to the mandated leaves, organizational-
Workers’ Compensation Leaves - Employees who have sustained an on the job injury and are on a workers’ compensation leave of absence are protected under individual state non-discrimination regulations, and may enjoy protection under a state’s mandated leave or the FMLA. Employers must ensure that these employees are treated the same as other employees who are temporarily disabled and follow any internal policies or past practices related to the leaves. Further, employers should consult with the claims manager at their workers’ compensation carrier to discuss any adverse employment action prior to taking the action, to determine that there is agreement in terminating the employment of the individual, and to discuss the effect of such a termination on the claim.
FMLA or State Equivalent Leaves - Employers must comply with the FMLA or a state equivalent leave if the employee is employed at a work site that has 50 or more employees within a 75-mile radius. FMLA or the state equivalents often run concurrently with a workers’ compensation claim and/or internal leave of absence policies. The FMLA or the state equivalent provides a period of time of job protected leave. After the expiration of the mandated leave, employers may rely on internal policies and practices related to the extension of time off if the individual is still unable to return to work. Otherwise, an employer may terminate the individual’s employment if he/she is unable to return after the expiration of the mandated leave.
Internal Leave of Absence Policies – Many times an employer who does not have to comply with a mandated leave or who wants to provide an extended leave of absence will have an internal temporary disability leave policy that affords employees time away from work for recovery. These internal practices also may be used to extend an employee’s leave if he/she is still unable to return to work following an FMLA or state equivalent leave’s expiration.
The key with all leave of absence administration is that the employer’s policies and practices are consistently applied. Consistent application of these policies and practices will ensure non-discriminatory practices when it comes to the termination of an individual who is unable to return to work from leave. If you have questions about your leave of absence requirements, or need assistance in the development of a policy in this regard, please reach out to your HR Professional for guidance
Question & Answer
Paid Holidays and Overtime
Q. Our company was closed on Monday to observe a holiday and the employees were paid for the day off. Now we have a big order and need to work on Saturday. Do I have to pay the hourly employees overtime for working on Saturday?
A. Federal wage and hour laws require that a non-exempt employee be paid one and one-half the regular rate of pay for all hours worked over forty (40) in one workweek. In the instance of a holiday occurring in a workweek, these holiday hours, although paid time, are not considered under federal or state laws as hours worked, and do not have to be used for purposing of overtime computations. For example, an employee receives 8 hours holiday pay for Monday, works 32 regular hours Tuesday through Friday and then 8 hours on Saturday. In this scenario, the employee would be entitled to 40 hours regular pay, 8 hours holiday pay, and no overtime hours. Employers are urged to discuss how the payment of the Saturday work will affect employee paychecks to avoid any confusion on payday.
Vacation and Paid Time Off (PTO) Carryover
With the end of the calendar year fast approaching, many employers are reminding employees that the company’s policy does not allow for the carryover of unused vacation time or paid time off (PTO) to the next calendar year or that there is a limit on the amount of time that may be carried over from one year to the next. Such limitations on unused vacation or PTO time carry over may be permitted under a state’s wage and hour regulations;
Some states view vacation and PTO as a form of wages and employers are not permitted to establish policies that have a “use it or lose it” clause. In these states, it is permissible for the employer’s vacation or PTO policies to state that unused time will be carried over from one year to the next, but once a specific maximum number of hours are banked, the accrual of additional time is stopped until the balance drops below this maximum.
Other state wage and hour regulations permit employers to maintain a “use it or lose it” policy that provides for employers to dictate a specific date by which all vacation time must be used or the time will be forfeited. In these states, employers may also opt to limit the amount of time that is permitted to be carried over to the next year.
Timely reminders to employees of an employer’s policy regarding carry-over of unused time will not only help prevent employee morale issues related to the loss of unused time, but will also help to reduce the number of employees who are requesting time off at year end. Keeping your employees apprised of the amount of vacation or PTO time in individual accounts shifts the burden of responsibility from employer to the employee to maintain accountability of tracking vacation or PTO accruals and banks.
State Final Paycheck Laws Guide
Employers are not required by federal law to give former employees their final paycheck immediately upon termination. Some states, however, may require immediate payment. The timeframes for distributing final paychecks vary based on which party initiates the employment separation in many states. Utilize the State Final Paycheck Laws Guide to learn more. To download the State Final Paycheck Laws Guide, visit your HR Support Center, Guides section. https://support.myhrsupportcenter.com/