The HR Strategist: February 2016
In this issue:
- How to Prepare for an OSHA Inspection
- 5 Employee Handbook Updates for 2016
- Why You Should Have Job Descriptions
- Dollar-for-Dollar is New Most Common 401(k) Match
- Did You Know?
When a workplace accident results in an employee being injured, an employer is likely to experience a visit from a US Occupational Safety and Health Administration (OSHA) inspector. Here is what an employer can expect during the inspection and how the company can prepare in advance.
Typically, an OSHA inspection includes an opening conference, a walk around the pertinent parts of the workplace or job site, and a closing conference.
Before the OSHA investigator arrives, it is important for the employer to determine who will accompany the inspector during the investigation, and that person should be trained on how to interact with the investigator (Be honest, be polite, and don't volunteer information but provide only what is requested). This person is typically a safety director or someone in upper management who is familiar with OSHA standards.
The employer's person in charge of managing the inspection needs to know how to locate the company's safety documentation, including injury and illness records for the past five years, anything related to the employer's hazard communication program, emergency preparedness and evacuation procedures, and information about the company's lockout/tagout program and protective equipment. Whoever is in charge should also be familiar with OSHA posting requirements and be prepared to provide copies of the company's OSHA logs for at least a three-year period.
Employers can prepare for an OSHA inspection by conducting a self-inspection and taking immediate corrective action for any violations discovered since an OSHA inspector can cite the employer for any violation he/she sees during an inspection, not just violations that are related to the employee's injury.
It is also advisable for employers to review safety training records for all employees involved in an incident as well as records of any disciplinary action taken against them for safety violations and related infractions. Both types of documentation will be required to satisfy OSHA if an employer decides to raise the affirmative defense of employee misconduct.
For additional information, please visit the OSHA website.
An employee handbook lays out how the employer wants employees to be treated and how workers are expected to behave. But it can do more – it can make a clear statement about an organization's brand and culture, and it can serve as a tool to attract, engage, and retain top talent.
As we begin a new year, here are the top 5 areas where handbook updates may be needed.
1. Reasonable Accommodations
Employees are entitled to reasonable accommodations under certain circumstances, such as physical and mental health conditions; for religious beliefs, practices and observances; and for pregnancy, childbirth and related medical issues. But not all workers who might want an accommodation – or who qualify for one – make a clear statement requesting one.
Employers should spell out in their handbooks not only the legal bases for accommodations but also the company's intention to comply with them when they are reasonable. Managers must be put on notice that, if a worker mentions a condition that might qualify, they should ask if the employee is seeking an accommodation.
2. Wages and Payroll
Two pay-related issues – unauthorized overtime and improper deductions from workers' pay – frequently trip up employers and should be addressed in writing to minimize legal liability.
It's not uncommon for people to work more hours in a pay period than planned. Federal law makes it clear that, if employees qualify for overtime, they must be paid for the additional work they do outside their normal hours. However, companies should state in their handbooks that employees may not work overtime without advance permission from their manager and that managers can discipline employees after they work unapproved overtime. It also should be made clear that non-exempt employees should not access job-related emails outside of work hours, which can trigger pay issues.
If an organization makes an improper deduction from a worker's pay, it can correct the mistake, including through the payment of overtime wages if warranted. The handbook should spell out practices that the company engages in – and does not engage in- with regard to pay, noting that it will make good-faith efforts to correct mistakes when alerted to them.
Employers must be careful how they treat a worker who is not eligible for leave under the federal Family and Medical Leave Act (FMLA) or who has exhausted such leave. That employee may still be eligible for leave under the Americans with Disabilities Act (ADA). Your handbook should note that a person might qualify for leave under the ADA as a reasonable accommodation.
In many cases, the ADA trumps the FMLA when an employee's own medical condition requires an accommodation, regardless of whether the accommodation is needed on the employee's first day of employment or once they are covered under the FMLA.
Employers are urged to perform a thorough individual assessment of each person who takes federally protected leave, and that practice should be emphasized in writing. Make it clear that workers will not be punished for legitimate absences from work.
Many handbooks say the organization will not tolerate retaliation, which in recent years has been the most common charge brought by the US Equal Employment Opportunity Commission (EEOC). Make sure this policy states that the company protects witnesses and others who participate in an investigation of a retaliation claim as well.
In addition, the handbook should state that the employer cannot promise confidentiality for people who make retaliation complaints. Instead, it can say that their identities will be revealed only on a need-to-know basis. The process must be fair for both the person making the retaliation claim and the individual who is being accused.
5. State-Specific Laws
States have passed several significant employment laws in recent years, and municipalities are joining the trend. Every employer is responsible for staying abreast of changes to laws and regulations that impact its worksites, and then adjusting policies and procedures accordingly.
Employee handbooks cannot be amended every time a new law or rule takes effect, of course, but at least once a year they should be updated to reflect the most recent and important changes.
There are no state or federal laws that require job descriptions. But they can be helpful tools for both practical and legal reasons. Here are four of the most important.
A Useful Communications Tool
Job descriptions can be a useful communications tool to tell employees exactly what tasks you expect them to perform. Job descriptions may also address quality or quantity of performance standards, or even work rules that apply to a particular job. Without such clear communications, employees may not perform to your expectations.
To Help Identify the Right Employees for a Job
Job descriptions can help identify particular skills or abilities that are necessary for a position or the environmental pressures that apply to the position. A good job description tells the applicant what the position may involve or require. After reading the job description, some applicants may decide that they are not a good fit for the position or are not interested in it.
To Describe Legitimate Minimum Qualifications
If a job requires a particular certification, such as a commercial driver's license, a particular degree, or professional designation, list it in a job description. Similarly, if a negative drug test is required before starting or continuing work - that should be stated in the job description.
Other objective, minimum qualifications can be listed as well, including such basics as the need for good attendance and the ability to work well with others. Then, if a person seeks a position and does not possess the required certification or qualifications, you have a legitimate, non-discriminatory reason for not placing the person in the job.
To Help Justify an Employee's Exempt Status
If an employer claims an employee is exempt from minimum wage, timekeeping, and overtime requirements under the "executive" exemption to the Fair Labor Standards Act (FLSA), the job description should state that the employee manages a "recognized department or subdivision" of the company and regularly supervises at least two or more full-time equivalent employees every week. Other managerial duties should also be referenced in the job description.
Similarly, for those employees that an employer is attempting to qualify as exempt under the "administrative" exemption, the job description should state that the employee "regularly exercises independent judgment and discretion about matters of significance" or words to that effect. Again, describing duties that involve such independent judgment and discretion, such as "negotiates" or "decides," would be helpful.
According to a new survey report from consultancy Aon Hewitt, the most common employer 401(k) match is now on a dollar-for-dollar basis. Employers also are automatically enrolling employees into their plans at higher salary-deferral rates and making other design improvements to increase participation and encourage savings.
To encourage workers to save more, employers are contributing more:
- 42% of companies now match dollar-for-dollar, up from 31% in 2013. Before 2013, a 50-cent per $1.00 match was the most common formula.
- 56% of plans require workers to save 6% or more in order to receive the full employer-matching contribution.
Employers that automatically enroll employees into defined contribution plans are raising the percentage of salary used as the default rate:
- 52% automatically enroll workers at a savings rate of 4% or more, up from 39% of employers in 2013.
- 51% of default workers at or above the company match threshold, nearly 10 percentage points higher than in 2013.
Employers are also continuing to add Roth 401(k) features:
- Nearly 6 out of 10 employers offer Roth contributions – up from 50% in 2013 and 11% in 2007.
- When Roth contributions are available, one-third of employers allow for in-plan Roth conversions. In 2013, the ratio was closer to one out of four.
Addressing topics in the workplace, such as financial wellness and income planning in retirement can help boost employee engagement and plan participation. Engagement may lead to higher retirement confidence and financial wellness may lead to more satisfied and productive employees.
Betsy Monaghan is our new Client Services Manager! Betsy has been a part of the HRi team for over 18 years and is most recently managing our Client Services Department to ensure quality customer service is provided to all of our clients. Betsy acts as a liaison for our clients; she works to ensure our clients and client employees are receiving assistance in a helpful, efficient manner and that all aspects of our clients' payroll are running smoothly and services are being delivered appropriately.
Here is a little information to get to know Betsy better:
- Favorite color: Blue
- Favorite book: Little Women by Louisa May Alcott
- Favorite movie: The Last of the Mohicans
- Favorite sports team: Baltimore Orioles and Ravens