The HR Strategist: July 2015
In this issue:
- Employers Need to Prepare for the Proposed Overtime Rules
- Pregnant Workers Fairness Act: Young vs. UPS
- 5 Common I-9 Pitfalls & How to Avoid Them
- 13 Ailments Caused by Lack of Water
- Did You Know?
Employers will face many complicated operational issues as a result of the overtime proposed rules – issues that should be considered well in advance. Employers facing rising labor costs will be forced to ask:
- Do we pay our employees more to keep them exempt?
- Do we pay them less and/or reduce their hours to minimize overtime costs?
- Do we eliminate or reduce benefits provided to these previously exempt employees?
- Do we hire more workers to account for any hours shortfalls?
There are ways to prepare for the proposed overtime rules and maintain a neutral cost structure. Policies can be set to discourage overtime so that an employer could get to a neutral cost structure without cutting benefits. For example:
Clear Overtime Policies
There could be policies requiring preapproval by management to work overtime. Overtime worked in violation of the policy must be paid, but an employee may be disciplined for such work. Overtime policies need to address such off-duty tasks as:
- Taking work home
- Making/receiving job-related phone calls at home
- Working through lunch
- Working before or after regular shifts
- Taking care of employer equipment
- Job-related "volunteer" work
Employers need to effectively communicate and provide clear guidance to both supervisors and managers on the new policy. Managers need to understand clearly that the policy is to be taken seriously and that if they want non-exempt employees to be engaging in anything work-related after hours, then that is not free labor.
Another cost-saving measure could be to re-designate the workweek. Employers may discover that if they change the workweek to Wednesday to Tuesday, for example, they will capture hours in a different way and be less likely to have overtime than if they continues with a Sunday to Saturday workweek. However, employers need to remember that they cannot arbitrarily flip back and forth with the workweek and should give ample notice to employees if they are going to charge the workweek.
On behalf of our clients, HRi is closely monitoring any developments regarding the proposed overtime rules released by the Department of Labor. Should you have employees that will be affected by the final rule, our HR Business Partner will contact you directly to discuss the best approach for you and your employees.
Peggy Young worked for UPS as a pickup and delivery driver. When she became pregnant in 2006, her doctor restricted her from lifting more than 20 pounds during her first 20 weeks of pregnancy and 10 pounds for the remainder. UPS informed Young that she could not work because the company required drivers in her position to be able to lift parcels weighing up to 70 pounds. As a result, Young was placed on leave without pay and subsequently lost her medical coverage.
Young claimed that her co-workers were willing to help her lift any packages weighing over 20 pounds and that UPS had a policy of accommodating other, non-pregnant drivers. At the time, UPS accommodated (1) drivers who were injured on the job; (2) drivers who lost their Department of Transportation certifications; and (3) drivers who suffered from a disability under the Americans with Disabilities Act. Young brought a federal lawsuit against UPS under the Pregnancy Discrimination Act of 1978.
UPS argued that its decision not to provide an accommodation to Young was non-discriminatory because it followed a company policy that does not take pregnancy into account. The Supreme Court disagreed, fining in Young's favor after two lower courts had ruled in favor of UPS.
Under a "disparate treatment" theory of liability, as alleged by Young, an aggrieved employee must show that she has been intentionally discriminated against. In this case, the Supreme Court found that to make this showing, the employee must demonstrate that the employer's policies impose a "significant burden" on pregnant workers, and that the employer has not raised a "sufficiently strong" reason to justify that burden.
In other words, policies that provide accommodations or light duty to certain categories of employees, but not to pregnant women, will likely be found to impose a "significant burden" on pregnant employees.
It is also important for employers to understand that the Pregnancy Discrimination Act is not the only law that requires them to provide accommodations to pregnant women. The 2008 amendments to the American with Disabilities Act extended the scope of that legislation to require employers to provide necessary accommodations to pregnant women with pregnancy-related conditions that meet the definition of "disability" – and most now do meet that definition.
There is evidence that providing accommodations is good for business – it reduces employee turnover and absenteeism and boosts employee morale and productivity. Employers can make sure they are on the right side of the law by taking the following steps:
- Ensure that light duty policies that apply to some categories of employees, such as those with on-the-job injuries apply also to pregnant women
- Carefully review other workplace policies to ensure compliance with both the Pregnancy Discrimination Act and the Americans with Disabilities Act's mandates to provide accommodations to pregnant women. Employers in cities and states that have pregnancy accommodation law will need to ensure compliance with those laws' often more expansive requirements as well
- Establish procedures for determining what accommodations are necessary and appropriate
- Train supervisors about how to recognize and respond to pregnant employees' need for accommodation
The I-9 is a critical form the government requires of every employer in the US to use to verify the identity and employment authorization of all employees. The nine-page packet includes three critical sections that both the employee and employer must complete. If incomplete or submitted incorrectly, these three sections could cost an employer thousands of dollars in fines.
Here are 5 common I-9 errors and how to avoid them.
1. Failing to examine documents in the employee's presence. View only original versions of the required proof-of-identity and work authorization documents.
2. Failing to check a category – or checking multiple categories. In Section 1, "Employee Information and Attestation," only one category may be checked. This section must be completed on or before the employee's first day of work. The employer then has three business days from the employee's start date to complete the remainder of the I-9.
3. Rushing through Section 2. In this section, the "Employer or Authorized Representative Review and Verification," many employers forget to include the employee's name and hire date. Also often missed are the representative's title and company address.
4. Inconsistent copies of supporting documentation. Employers are not required to keep copies of the documents shown for I-9 verification. However, if you choose to keep copies, then you must keep a copy for every I-9. IF an employer would like to change a policy, it should document the policy change and effective date.
5. Telling the employee what documents to produce or failing to provide the entire I-9 packet. Employers cannot tell an employee which documents to produce. Instead, employers should provide the complete I-9 packet in advance.
In this increasingly "paperless" society, even the I-9 is now part of our online onboarding process. Our online tools ensure all of our clients at every worksite location follow the same onboarding process and fill out the appropriate new employee forms - correctly. The automated new hire forms simplify and reduce paperwork for everyone.
Most people don't think they need to worry about dehydration. To them, dehydration is something that happens to travelers in the desert when they run out of water. But there is a chronic form of dehydration that does not have the sudden and intense nature of the acute form.
As the dog days of summer quickly approach, it is important for employers to remind any and all of their workforce (especially those who primarily work outside) to take frequent breaks to re-hydrate themselves. Here is a list of 13 symptoms that will inspire your employees to go get a glass of water.
1. Fatigue, Energy Loss
2. Premature Aging
3. Excess Weight and Obesity
4. High and Low Blood Pressure
7. Digestive Disorders
8. Gastritis, Stomach Ulcers
9. Respiratory Troubles
10. Acid-Alkaline Imbalance
12. Cystitis, Urinary Infections
Please meet Esther Agyapong - one of our dedicated Client Services Specialists. Esther comes to us with a diverse background in payroll, benefits administration, and employee relations experience. She is the primary point of contact for a number of our clients and is responsible for payroll processing and benefits administration.
Here's a little information to get to know Esther better:
- Favorite color: Purple
- Favorite book: Americanah by Chimamanda Ngozi Adichie
- Favorite movie: Home Alone
- Favorite sports team: Los Angeles Lakers