Are PTO Plans Right for Your Organization?

Consolidated paid time off (PTO) plans, or PTO banks, give employees
flexibility in using their paid leave and are generally easy to implement.
Use the guidelines below to determine if a PTO plan is right for your
organization.

What happens under your vacation or sick leave policy if an employee
needs to stay home with a sick child? Or, what do you do if an employee
wants to take two days off to attend a nonwork-related seminar?

Under a traditional policy that separates vacation and sick days,
employees often feel as if they are forced to fake an illness to avoid
using their vacation allowance. With a paid time off (PTO) bank, you can
give employees a set number of paid days a year and then let them
choose how the days will be used.

Learn more about PTO plans.

Pregnancy Leave When Not Covered by FMLA (Q&A)

Do you know what your obligations are to a pregnant employee who is
not covered by the FMLA? Find out what steps you should take to
prevent pregnancy discrimination.

Q: If an employee needs leave for pregnancy-related issues, do we
have to reinstate her after the leave? Do we have to provide a certain
number of weeks of leave? We have 45 employees and are not covered
by the FMLA.

A: If your organization is not covered by the Family and Medical
Leave Act (FMLA) or if an employee is not eligible for FMLA leave, then
you still must comply with the Pregnancy Discrimination Act (PDA),
any internal policies, and any state laws requiring pregnancy leaves of
absence.

(The FMLA generally applies to employers with 50 or more employees
and all public agencies and schools, and provides leave and
reinstatement rights for various family and medical reasons, including
pregnancy. (Click to download a free FMLA Checklist.)
An eligible employee is one who: (1) has worked for the employer for at
least 12 months (not necessarily consecutively); (2) has worked for the
employer for at least 1,250 hours in the previous 12 months; and (3) works
at or is assigned to a worksite that has 50 or more employees or which is
within 75 miles of employer worksites that taken together have a total
of 50 or more employees.)

The PDA, found at 42 U.S.C. §2000e(k), amended Title VII of the Civil
Rights Act to prohibit discrimination based on pregnancy. It applies to
employers with 15 or more employees and requires employers to treat
women affected by pregnancy, childbirth, or related medical conditions
the same as employees who are on leave for other temporary medical
disabilities. Thus, because the PDA is an antidiscrimination law rather
than a law mandating leave, it does not require covered employers to
grant pregnancy leaves. Instead, it only entitles pregnant employees to
the same leave and benefits granted to nonpregnant employees with
other temporary medical disabilities.

So, if your organization regularly grants leaves for other temporary
medical disabilities and guarantees reinstatement, then you should treat
pregnant employees in the same manner. As explained in the Equal
Employment Opportunity Commission (EEOC) guidelines interpreting the
PDA, found in 29 C.F.R. §1604.10(b), any policies relating to the
commencement and duration of leave, the availability of leave
extensions, the accrual during leave of seniority and other accrued
benefits and privileges, insurance coverage, and reinstatement after
leave must apply equally to pregnancy and other disabilities.

Although you may not treat pregnant employees differently if the
differences affect them adversely compared to others with temporary
medical conditions, you may be able to treat them more favorably. In the
Supreme Court's ruling in California Fed. Sav. & Loan Ass'n v. Guerra,
479 U.S. 272 (1987), the Court upheld a California statute requiring
employers to provide female employees an unpaid leave for pregnancy
disability and to reinstate those employees when they are able to return
to work unless the job is no longer available. The Court held that a state
could mandate the provision of a benefit to pregnant employees that is
not granted to other disabled employees. This decision appears to allow
employers to give pregnant employees greater leave flexibility than is
given to other temporarily disabled employees.

You also should check state law for any additional pregnancy leave
obligations. Some states have laws guaranteeing pregnant employees
leaves and reinstatement rights. For example, the California statute,
discussed above and validated by the Supreme Court, requires
employers with five or more employees to provide female employees
with up to four months of leave in connection with a period of disability
resulting from pregnancy, childbirth, or related medical conditions.

Make sure your employee policies and training programs are up to date.
Use online training software (elearning software) if you have to. Clearly documenting hr policies
and employee training can help if you ever find yourself in litigation.

Terms Used:

• Pregnancy Leave
• FMLA (checklist)
• Employee policies
• Training software
• California Fed. Sav. & Loan Ass'n v. Guerra,
  479 U.S. 272 (1987)

Health Coverage Obligations under the FMLA

Untangling the Family and Medical Leave Act (FMLA) health care
coverage requirements can be a daunting task. What coverage must be
maintained when an employee takes leave and what coverage is the
employee entitled to upon reinstatement? Who pays the premium is
another tricky area.

Although the FMLA allows you to terminate insurance coverage for
nonpayment of premiums or permits your employee to drop the
insurance while on unpaid leave, either scenario could cause problems
when the employee returns to work and must be restored to full
coverage. A review of FMLA guidelines will help you make the right
decisions about maintaining health care benefits and paying premiums
when an employee requests FMLA leave. (Click to download a free FMLA Checklist.)

FMLA Health Care Coverage Guidelines

The FMLA, which requires covered employers to provide up to 12
workweeks of leave to eligible employees for various family and medical
reasons, has specific requirements about continuation of health care
coverage when leave is taken and about how you should handle
payment of premiums. In addition, upon return to work, the employee
must be fully restored to health care coverage subject to any changes
that may have occurred. Each of these topics is addressed, below.

-- Continuation of coverage. If you provide health care benefits
under a group health plan, you must provide the same health benefits
during an eligible employee's FMLA leave as would have been provided
if the employee worked throughout the leave. (If you do not provide
insurance before the leave is taken, the FMLA does not require you to
provide it during the leave.) In addition, your obligation to continue
health benefits ends when the employee notifies you that he will not
return to work from the leave. However, the notification must be
unequivocal in order to discontinue health benefits. If the employee
indicates he may not be able to return to work, but wants to, you must
continue to provide health benefits for the duration of the FMLA leave.

Note, too, that employees on unpaid leave may elect to discontinue
health insurance coverage (unless the employer pays the employee's
share of premiums) during the unpaid period of FMLA leave. However,
these employees still must be reinstated to the same insurance benefits
when they return to work.

-- Payment of premiums. The FMLA requires you to pay the
premium on health care coverage on the same terms as you paid the
premium before the employee took leave, paid or unpaid. Therefore, if
you paid 80% of the premium before the employee took leave, and the
employee paid 20%, you must continue to pay at least 80% of the
premium after the employee takes leave. You also may be more
generous, for example by paying the employee's share.

-- Reinstatement of coverage upon return to work. Upon return,
the employee must be restored to the same health benefits coverage as
provided prior to leave, subject to any changes in benefit levels that may
have occurred during the leave. A returning employee may not be
required to meet any qualification requirements normally imposed for
entry or reentry into the group health plan, including any preexisting
condition waiting period or medical examination requirements.

For more, click here ...

Make sure your company has the HR Policies needed to justify your HR decisions. Furthermore, nothing can replace old fashioned employee training and compliance documentation.

Bottomline:

• Get company policies
• Create training programs (learning management systems can help)
  

Exempt Employees Performing Nonexempt Work Q&A

Q: We have an exempt employee (i.e., exempt from the minimum wage
and overtime provisions of the Fair Labor Standards Act (FLSA)) who
would like to work in our call center on the weekends doing nonexempt
work. Can we pay her on an hourly basis for the nonexempt work, in
addition to her regular salary, without affecting her exempt status?

A: As a general rule, an employee is considered to be exempt if she is
paid on a salary basis and her job duties meet the criteria for the
administrative, executive, or professional exemptions. Thus, your
questions raise two related issues: (1) whether the exempt employee
would be performing more nonexempt work than is consistent with her
exempt status; and (2) whether she can still be considered paid on a
"salary basis" under the FLSA if you pay her additional hourly
compensation.

Regarding the first issue, the FLSA salary basis test for white-collar
exemptions requires that most exempt employees be paid a salary of at
least $455 per week and that their "primary duty" must consist of the
performance of exempt work. (Download free report: "FLSA
Exemption Regulations: Understanding The Issues.")
The FLSA regulations, found in 29 C.F.R. §541.700(b), indicate that employees
who normally spend more than 50% of their time performing exempt
work will satisfy the primary duty requirement. However, time alone is
not the sole test, and employees who spend less than 50% of their time
on exempt duties still may meet the primary duty standard if the other
factors support the exemption.

Although these regulations focus on nonexempt work related to the
exempt employee's regular job, the same analysis can be applied when
the employee works in a second, unrelated job. Thus, as long as the
exempt employee devotes over 50% of all of her working time to exempt
job duties, including the time spent in the call center doing nonexempt
work, she should continue to meet that exemption criterion.

The second issue raises the question of whether extra compensation
paid in addition to the exempt employee's salary will jeopardize the
exempt status. The FLSA regulations define "salary basis" as payment
on a weekly or less frequent basis of a predetermined amount
constituting all or part of compensation, without reductions for variations
in the quality or quantity of the work performed.

The regulations specifically allow employers to provide exempt
employees extra compensation without jeopardizing the exemption or
violating the salary basis requirement. According to the regulations,
found in 29 C.F.R. §541.604(a), if the exempt employee is guaranteed a
minimum weekly payment of at least $455, she also may be paid a
commission on sales or a percentage of profits or sales, or even
additional compensation based on hours worked beyond the normal
workweek. This additional compensation can be paid on any basis,
including a flat sum, bonus payment, straight-time hourly amount, time
and one-half, or any other basis, including paid time-off.

Note that this reference to extra payments calculated on an hourly basis
was added to the regulations in August 2004. (Download free report: "FLSA
Exemption Regulations: Understanding The Issues.") The
old regulations also allowed for extra compensation in the form of
commissions and bonuses, but did not address whether employers could
pay exempt employees extra amounts based on hours worked. Some
courts, and the Department of Labor (DOL) in nonbinding opinion letters,
have traditionally allowed employers to pay additional compensation
calculated on hours worked without affecting the exempt status. The
DOL formalized this position in the 2004 revisions.

Training Resources:

* Learning management system: Training software enables you to quickly create, deploy and manage e-learning, employee training, workforce performance management.
* Free HR Policies: Download free company policies for HR, Employment law compliance
* Employee Handbook: Easily create employee policies using Employee Handbook templates.

Military Leave Requirements Under USERRA

1. What does USERRA require?
2. What employers and employees are covered?
3. What does “service in the uniformed services” include?
4. Do employees have to provide advance notice of their need for leave?
5. How much time off can employees take and still be guaranteed reemployment?
6. Do we have to pay employees on military leave?
7. How are health care benefits covered during military leave?
8. How are pension benefits treated during military leave?
9. How are vacations and other seniority-based benefits treated?
10. Does the employee have to provide notice of his intent to return to work?
11. What are our reemployment obligations?
12. What is the “escalator principle”?
13. Are there any exceptions to the reemployment obligation?
14. What other protections do returning veterans have?
15. Do states have similar requirements?

As an employer, you need to know what your obligations are to employees that take military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Our editors have analyzed the USERRA statute and court cases to answer 15 common questions concerning USERRA requirements.

1. What does USERRA require? [Download Free HR Policies]

USERRA, codified at 38 U.S.C. §4301 et seq., provides enhanced leave rights and job protections for employees absent for military duty. It prohibits discrimination in employment and retaliation against any person who was, is, or applies to be a member of a “uniformed service,” or who performs or has an obligation to perform “service in a uniformed service.” (For discussion on Reinstatement, see below.)

USERRA further provides that you must grant a leave of absence for up to five years to any person who is absent from a job because of service in the uniformed services. (See question 5, below.) In addition, you ordinarily must reinstate the returning veteran to the position he would have held if his employment had not been interrupted by military service.

2. What employers and employees are covered?

The USERRA applies to all employers, regardless of size, and to every employee, regardless of length of service or part-time status (with the exception of workers employed for brief, nonrecurrent periods).

3. What does “service in the uniformed services” include?

This service includes voluntary and involuntary active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard duty. It also includes any absence needed for an examination to determine whether a person is fit to perform military duty. The “uniformed services” are the Army, Navy, Air Force, Marine Corps, Coast Guard, and their reserves; the Army and Air National Guards, including periods of training; the Public Health Service commissioned corps; and other categories designated by the President in times of emergency.

4. Do employees have to provide advance notice of their need for leave?

Yes. Employees must provide employers advance written or oral notice of their need for military leave. USERRA does not specify how much notice must be given. Notice is not required if military necessity prevents the giving of the notice or it would be unreasonable or impossible to give the notice.

5. How much time off can employees take and still be guaranteed reemployment?

Reemployment rights apply only to veterans whose cumulative period of uniformed service does not exceed five years while employed by the same employer. However, in computing the cumulative five-year period, you may not count time spent in National Guard and reservist training.

Further, you may not count involuntary extensions of service that result from the following:

-- an order to remain on active duty because of a war or national emergency (unless the extension is for training);

-- the veteran’s inability to obtain release orders before expiration of the five-year period through no fault of his own;

-- an obligation to complete an initial period of service that is beyond five years;

-- an order to fulfill additional training requirements certified in writing by the Secretary of Defense;

-- a call into federal service as a member of the National Guard;

-- or an order to active duty, as determined by the Secretary of Defense, in support of certain operational or critical missions.

6. Do we have to pay employees on military leave?

No. USERRA only requires unpaid time off. The military generally pays its activated members. Employers often provide pay for at least a limited period of time, in recognition of the duty the employees are fulfilling and because military pay is often much less than the employee’s normal wages. Many employers also allow employees to use any accrued vacation during military leave, although you may not require employees to use vacation. Note, however, that the Fair Labor Standards Act requires that exempt employees who take military leave and work for the employer in the same week must be paid for the entire week in order to maintain the exempt status.

7. How are health care benefits covered during military leave?

USERRA requires employers to allow any employee on a military leave to elect and pay for continuation of coverage for himself and dependents under any health care plan provided in connection with employment. This coverage ends after 18 months or, if earlier, on the date the veteran fails to return or apply for return to employment as required. (See Return to work requirements.) The person electing this coverage may be required to pay up to 102% of the full premium associated with coverage for other employees. If the period of service is less than 31 days, the employer must continue health insurance as if the person is actively employed, and the person may be required to pay only the regular employee share of the premium.

If the coverage is terminated while the employee is on a military leave (either because the employee elects not to continue the coverage, because the period of service exceeds 18 months, or for any other reason), the employee and his dependents may not be subject to waiting periods or preexisting condition exclusions upon reinstatement.

8. How are pension benefits treated during military leave?

USERRA requires employers to treat the period of military leave as service with the employer for purposes of vesting and the accrual of benefits. Further, the period of military leave may not be treated as a break in service under the pension plan. On reemployment of the veteran, the employer must make any employer contributions to the pension plan that would have been required on behalf of the returning employee had he continued working for the employer during the period of service. Similarly, the returning veteran must be allowed to make up any employee contributions or elective deferrals he would have been eligible to make during his period of service.

9. How are vacations and other seniority-based benefits treated?

Employees returning from military leave are entitled to any benefits determined by seniority that they had when their leave began and also those benefits which would have accrued had they remained continuously employed. Thus, if an employer’s vacation policy is based on seniority, the employer must count the years of military leave as if they were years of actual work to determine how many weeks of vacation the returning veteran would then receive.

However, the employee does not have to be allowed to accrue vacation while on leave, unless other employees on leave are allowed to do so. In addition, employers must treat employees on military leave the same as other employees on a leave of absence with respect to benefits not determined by seniority.

Reinstatement under USERRA

10. Does the employee have to provide notice of his intent to return to work?

Yes. On completion of the period of military service, the returning veteran must notify the pre-service employer that he intends to return to employment. The length of time that the veteran has to contact the employer depends on the amount of time spent in service, as follows:

-- Service of 30 days or less. The returning veteran must report to the employer on the first full regularly scheduled work period on the first full calendar day following completion of the service, plus eight hours. If it is impossible or unreasonable for the veteran to report within that period through no fault of his own, he must report as soon as possible. This reporting period also applies to an employee who is absent from work for an examination to determine his fitness for military service.

-- Service of 31 to 180 days. The veteran must apply for reemployment no later than 14 days after military service ends, or, if it is impossible or unreasonable for the veteran to report within that period through no fault of his own, on the next calendar day on which it is possible.

-- Service of more than 180 days. The returning veteran must apply for reemployment within 90 days of the end of the military service.

-- Service-incurred or aggravated injury. If the returning veteran is hospitalized for, or convalescing from, an illness or injury that was incurred in or aggravated by the period of service, the above reporting deadlines may be extended for up to two years for any period of recovery.

11. What are our reemployment obligations?

USERRA requires that any veteran who receives a certificate showing satisfactory completion of military service must be restored to his previous employment. The type of position to which the veteran must be reinstated depends on the period of service and on the veteran’s abilities at the time of reinstatement. The following time frames apply:

-- Service of 90 days or less. The veteran must be reemployed in the position he would have held if he had continued in employment without interruption for military service, as long as he is qualified for that position. If the veteran would have been promoted if he had continued in employment but cannot be qualified for that new position after reasonable efforts by the employer, he may be employed in the position he held when military service began.

-- Service of 91 days or more. The veteran must be reemployed in the position he would have held except for the interruption for military service, or in a position of like seniority, status, and pay, if qualified for that position. If the veteran would have been promoted if he had continued in employment but cannot be qualified for either that new position or an equivalent one despite the employer’s reasonable efforts, he must be reemployed in the position he held when the period of service began or in a position of like seniority, status, and pay.

-- Veterans who cannot be qualified for the job. If the veteran cannot be qualified for the job he would have held or the position he formerly held after the employer’s reasonable efforts, and his inability to qualify is not related to a service-incurred or aggravated disability, he must be reemployed in any position of lower status and pay for which he is qualified, but with full seniority.

A disabled veteran whose disability was incurred or aggravated by military service and who cannot perform the job he would have held even after reasonable accommodation by the employer must be reemployed in: (1) any other position of equivalent seniority, status, and pay for which he is qualified or could become qualified through the employer’s reasonable efforts; or (2) in the nearest approximation to an equivalent position consistent with the veteran’s circumstances.

Note that USERRA requires that returning veterans be “promptly reemployed.” What is considered “prompt” generally depends on the circumstances of the case and how long the employee has been on military leave.

12. What is the “escalator principle”?

In many cases, the position the veteran would have held had employment not been interrupted by the period of military service will be the same as the position held when the period of service began. When there would have been a change, however, the “escalator principle” requires that the veteran receive any change in position or benefits to which he would have been entitled had he remained continuously employed.

For example, the returning employee must be granted seniority for the leave period. Similarly, the veteran must receive all other “perquisites of seniority,” such as seniority-tied increases in vacation and sick-day accrual rates, pay raises based on longevity, and promotions based on longevity or length of service the veteran was reasonably certain to have achieved.

Also, if a veteran is laid off while on military leave, and would have received severance pay had he been actively employed at the time of the layoff, he is entitled to that severance pay on his return. Moreover, if the veteran was laid off and on a recall list at the time he entered military service, he must be returned to the recall list on completion of his service.

13. Are there any exceptions to the reemployment obligation?

USERRA specifies certain limited circumstances under which an employer is relieved of its obligation to reemploy veterans returning from military service. The burden is on the employer to prove that one of these exceptions applies. These circumstances include:

-- Change in employer’s circumstances. If reemployment is “unreasonable or impossible” because the employer’s circumstances have changed, the employer may deny reinstatement. For example, if the employee’s job has been eliminated in a reduction-in-force, reinstatement is not required. However, an employer does not satisfy this standard simply because the position has been filled or no opening exists.

-- Disabled veteran’s employment is an undue hardship. Reinstatement may be denied if the employment of a veteran with a service-incurred or aggravated disability would cause an undue hardship to the employer after reasonable efforts to accommodate the disability.

-- Dishonorable discharge. If an employee is separated from uniformed service with a dishonorable or bad conduct discharge, his rights to reemployment and other protections end.

14. What other protections do returning veterans have?

USERRA also protects returning veterans from discharge without cause for a period of time after reemployment. If the returning veteran’s military service lasted between 31 and 180 days, the veteran may not be terminated without cause for 180 days after the date of reemployment. If the veteran’s period of military service was more than 180 days, this protection applies for one year after reemployment. Veterans with less than 31 days of military service do not have protection against discharge without cause, but like other returning veterans, they are protected from discrimination based on military service or a continuing service obligation.

15. Do states have similar requirements?

A number of states have laws protecting employees who are members of the uniformed services or who take time off for military leave. Generally, the state laws are not as comprehensive as the federal USERRA. For example, California prohibits discrimination in employment against members of the armed forces but does not provide reemployment rights following military service. New York provides job and benefits protection only for public employees who take a leave of absence for military duty. Employers are required to comply with both USERRA and any applicable state law.

USERRA Protects Those Who Serve

USERRA creates a number of HR administrative headaches. But, before you complain too loudly, remember that Congress historically has been very clear that military service deserves a favored status. USERRA is intended to encourage and protect those who are called up, or volunteer, to serve our country. So, in times of emergency or national threat like the present, the greater national need is rightly given special protected status and deserves our support.

Paying Nonexempt Employees for Travel Time to Seminars or Training

Q: When do employers have to pay nonexempt employees for time spent traveling to a seminar or a training session? Does it make a difference if the employee spends the night?

A: Nonexempt employees (those employees covered by the minimum wage and overtime requirements of the Fair Labor Standards Act ("FLSA")) must be paid for all time considered working time. Whether travel time is counted as working time depends on when the travel takes place and what kind of travel is involved.

[Download Free HR Policies]

According to the FLSA regulations, the time spent by a nonexempt employee commuting from home to work is not considered working time and does not have to be paid. However, if a nonexempt employee travels to a seminar or training session that lasts for the day, the employee must be paid for all time spent traveling to the seminar, as well as all time spent at the seminar. The employee is considered to be on a special assignment performed for the employer’s benefit. For example, if a nonexempt employee travels two hours to a seminar, attends the seminar for eight hours, and then drives home for two hours, the employer would have to pay for the eight hours at the seminar and the four hours of travel time. The employer may deduct from the total working time the employee’s normal commute time and any meal period not spent performing work or in the seminar.

If a nonexempt employee travels to a seminar and leaves the day before the seminar begins, the employer only has to pay for travel time that cuts across the employee’s regular workday. In this case, the employee is simply substituting travel for other work duties. Thus, if the employee normally works from 9 a.m. to 5 p.m., and he leaves for the seminar at 4 p.m., he is only entitled to be paid for one hour of travel time, even if he travels until 9 p.m. Travel time on nonworking days is also considered work time if conducted during normal work hours. For example, if the same employee travels on a Saturday, he must be paid for any travel time between 9 a.m. to 5 p.m. The employer may deduct normal meal periods from the travel time. In addition, travel during nonwork hours may be considered work time if the employee is actually performing work while traveling.

Additional Resources

• Online training system (Save money with online training)
  
• Learning management systems
• How to create online training
• Employee handbook (Instant HR Policies)
  

When Do You Need Written HR Policies?

(Part 1 of 2)

Recent developments in harassment and other discrimination case law show just how risky it can be if you do not have written policies. Find out how to make sure your policies protect, not harm, your organization.

When was the last time you reviewed your organization's policies? If you're like many employers, writing or updating policies is at the bottom of a lengthy "to-do" list. And, you may even question the value of having written policies because of the apparently conflicting advice concerning their usefulness.

On one hand, many HR experts advocate having written policies as a way of communicating your organization's values and practices to employees. Alternatively, a growing number of attorneys are warning their clients that poorly drafted policies may land them in court. So, whom should you believe?

The short answer is both groups. Upon closer consideration, these positions are not contradictory. Well-written policies can both serve as an effective communication device and help you stay out of court, or at least give you a better chance of prevailing. In contrast, poorly executed policies can create unintended contracts and be used of evidence of noncompliance in court.

This week's and next week's E-Tips will help define the underlying issues and make clear why written policies that are carefully developed, updated, and applied are an effective tool that you need. This week, you will find out why written policies are important, who needs to have them, and how to make sure they do not create a contract that you must follow.

Next week, you will learn the difference between supervisory manuals and employee handbooks and find out which policies every employer should have.

1. Why are written policies important?

Sound employment policies provide the framework within which an organization governs its employee relations. A policies and procedures manual guides both managers and employees as to what is expected and can prevent misunderstandings about employer policy. In addition, supervisors and managers are more likely to consistently apply policies that are clearly communicated in writing.

It is true that written policies, like any record, can be used against an organization in a lawsuit. Poorly drafted policies often become the main evidence presented when employees allege that the policies were in fact a contract that the employer violated. However, policies that are carefully written so as not to be contracts actually should protect against these claims and not be a problem. (See number 4, below.) In addition, carefully written policies can be used to illustrate your commitment to a positive work environment and nondiscriminatory employment practices. (See number 3, below.)

2. Are we required to have written policies?

Although written policies in general are not legally required, certain policies may be mandatory or at least be considered an important component in helping employers establish good faith compliance with federal and state law.

For example, the Supreme Court has indicated that employers mayprotect themselves against liability for sexual harassment by having clearly articulated policies against sexual harassment that include effective complaint procedures. In addition, the Family and Medical Leave Act requires covered employers to provide written information regarding employee rights and employer obligations under the Act. Similarly, certain federal contractors must have written equal employment opportunity policies. And finally, many state laws require written harassment policies and policies informing employees about compensation issues.

3. Does every organization need written policies?

As a general rule, every employer, except maybe those with fewer than 15 employees, should have written policies. Employers with 15 or more employees are covered by federal discrimination laws (such as Title VII of the Civil Rights Act and the Americans with Disabilities Act) and most state discrimination laws. Written policies are a good starting point to show your commitment to nondiscriminatory employment practices. For example, a performance review policy can show the job-related criteria used to evaluate employees and any safeguards used to ensure the process is conducted in a fair and objective manner.

Smaller employers should at least consider creating a handbook since it is likely they already have some policies in writing. For example, employment offer letters may explain vacation and sick leave accrual while other items, like a posted memo, may outline pay procedures. Thus, to ensure distribution to all employees, even the small employer is well advised to compile these memos into a handbook that is given to every employee.

4. Will we create a contract if we have written policies?

The simple act of putting your policies in writing should not create a binding contract if the policies are written as guidelines that explain generally what your requirements are and how employees normally will be treated. However, you can create a contract by using language that conveys rigid rules that must be followed exactly as written in all circumstances.

Therefore, you should build flexibility into your wording and steer clear of any promises that could be interpreted as a contract. Your policies should not, for example:

• State that the organization will "only" or "always" do something or"must" act in a particular way;
• Describe employees as "permanent";
• State that employees will be terminated only for "cause";
• Make promises of job security; or
• Use all-inclusive lists, such as in disciplinary procedures or work rules.

Instead, you should use terms such as "generally," "typically," "usually," and "may" so that managers have flexibility in interpreting and applying the policies. In addition, you should specifically retain management's right to update, change unilaterally, and implement all policies as the organization sees fit. Finally, you should include a strong "at-will" statement that clearly specifies that all employees (who do not have contracts or collective bargaining agreements specifying otherwise) may quit at any time and for any reason or may be terminated at any time and for any lawful reason.

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Harassment Responses and Discipline

Harassment Responses and Discipline

Do you know what your obligations are to take disciplinary action if your harassment policy has been violated? Or, in situations where it is not clear that harassment actually took place, do you know how to prevent future harassment?

How you respond often will be the determining factor in either preventing or provoking discrimination claims. A weak reaction is no defense and may increase your legal exposure. Alternatively, you don't want to be too heavy-handed. A reflexive or too harsh response, such as an automatic suspension or termination without regard to the severity of the conduct, may needlessly provoke a legal claim by the alleged harasser. Fortunately, however, there are several simple steps you can follow to help determine the appropriate discipline.

Duty to Prevent Harassment

Your duty both to prevent workplace harassment and to take swift action to remedy it is well established. Title VII of the Civil Rights Act prohibits harassment or a work environment that is abusive to employees because of their race, gender, color, religion, or national origin. In addition, the Americans with Disabilities Act has been interpreted to prohibit harassment based on an individual's disability.

Although the most common harassment claims involve allegations of sexual harassment, the same legal analysis applies when the offensive behavior is aimed at any legally protected class. Most states also have laws forbidding workplace harassment, as do many cities and other local governmental authorities.

When Your Harassment Policy Has Been Violated

Of course, discipline is generally one of the last steps in any harassmentprocedure. It should follow only after you have conducted a thoroughand prompt investigation, interviewed all involved parties, and carefullyweighed the evidence. If you conclude that your harassment policy has been violated, disciplinary action is then the next step.

As a general rule, your disciplinary measures should take into consideration the nature and seriousness of the harassment and should also reflect whether it is the first violation of the policy, or part of a broader pattern of harassment. In addition, you should follow your organization's standard disciplinary guidelines and make sure your action properly matches any similar past precedents.

Courts and the Equal Employment Opportunity Commission (EEOC) generally agree that in order to escape liability under Title VII employers must take appropriate remedial action that is "reasonably calculated" to stop the harassment and prevent any future occurrences.

In addition, the disciplinary measures should also be appropriate to the seriousness of the offense. Of course, for any discipline short of termination, the harasser should be warned that further incidents will not be tolerated and will result in additional action.

No Violation of the Policy

If you investigate a complaint of harassment and determine that your policy was not violated, you should not take any action against the accused harasser or retaliate against the complaining employee. You should, however, explain in appropriate detail to the complaining employee why the evidence did not support the claim.

You also need to be prepared for the complaining employee's dissatisfaction with your decision.

As a safety valve, most employers invite the employee to submit any further evidence and assure her that it will be investigated. In addition, you should remind the employee that she may appeal the decision using your normal complaint resolutionprocedure. Any empathy you show for the complaining employee'sconcerns will help neutralize the type of emotional reaction that often leads to a claim with the EEOC or to a lawsuit. Get more, click here for free sexual harassment policy

Six Actions to Improve Your HR Performance

You still have time to make significant changes in your work environment by identifying old barriers to success and replacing them with new, more effective behaviors. The six suggestions on the "To Do" list that follows are based on common sense and are relatively easy to implement, plus when executed properly, they can have a strong impact on your effectiveness.

On the one hand, they are designed to limit corporate liability and, on the other, to build morale and improve overall employee relations. Either way, you are taking action to set a positive tone while improving professional standards.

1. Make sure employees get feedback on a regular basis.

Once-a-year evaluations are not enough. Employees should receive regular input from their supervisors. These discussions should typically focus on day-to-day performance objectives rather than on past mistakes or failures. This approach requires supervisors to observe and evaluate their employees regularly and to work closely with targeted individuals, as needed. In addition, make sure your managers give positive feedback for a job well done.

2. Terminate poorly performing or disruptive employees.

This advice is an obvious companion to the first suggestion. However, many managers are unwilling to terminate an employee even when the action is justified. The most common reason is the fear of being sued, but others include organizational inertia, fear of confrontation, and concern for the employee's economic well being. However, if you allow a poorly performing or disruptive employee to continue working, productivity and efficiency will suffer and discontent will spread. You can help limit the possibility of legal claims and make yourself more comfortable with the decision by following your normal disciplinary process before you terminate. For most employers this includes:

-- Giving notice to the employee of the specific performance problems
and the consequences of not improving;
-- Establishing goals for improvement;
-- Setting a reasonable timeframe for meeting the goals (normally two
weeks to 30 days);
-- Following up to see if there is improvement; and
-- Terminating the employee if the goals have not been met.

3. Pay overtime, even when you do not think it was properly authorized.

One of the surest ways to provoke a wage and hour claim is * not * to pay employees properly for overtime they have worked. According to Department of Labor (DOL) regulations, if you are aware that an employee is working more time than is scheduled, you must compensate the employee, even if you did not specifically request the additional work.

For example, if your policy requiring prior authorization for overtime work was not followed but a manager was aware the employee performed the work, you should pay for the overtime. You may, however, discipline the employee (and manager) under your normal disciplinary procedures for violating your work rule prohibiting unauthorized overtime.

4. Treat your exempt employees properly as exempt.

Most employers expect their exempt employees (those exempt from the overtime provisions of the Fair Labor Standards Act (FLSA)) to work as long as it takes "to get the job done." Yet, some of these same employers also penalize their exempts by requiring them to use hours of paid vacation or sick time when they leave early to take care of personal business. This practice can backfire in two ways.

First, it may jeopardize the employees' actual exempt status. The FLSA prohibits employers from docking the pay of exempt employees for absences of less than a day. The DOL does permit vacation or sick leave offsets since the employee does not experience a reduction in compensation. However, a few courts have disagreed.

The dissenting courts have determined that this practice, in fact, treats the exempt employee like an hourly, nonexempt employee and, therefore, triggers loss of the exempt status. As a result, you may be put in the position of having to pay overtime to the employee, and others similarly situated, if they lose their exemption because of your pay practice. (Note that there are special rules for exempt public employees allowing them to be considered exempt even if their pay is reduced for partial-day absences.)

Second, and perhaps just as importantly, the offset policy creates poor employee relations. Exempt employees will resent being required to use paid leave for partial-day absences, particularly if they regularly work more than 40 hours per week. If your concern is that your exempt employees may abuse their status by leaving early or coming in late,address those issues as a separate matter. For example, discipline exempt employees who do not complete their work or are not available when needed. In other words, do not penalize all your exempt employees just because of the possible abuses of a few.

5. Make sure you designate leave appropriately under the FMLA.

The single biggest compliance mistake most employers make under the Family and Medical Leave Act (FMLA) is their failure to notify an employee that a leave is specifically covered by the FMLA. When this failure occurs, you cannot count the time off against the employee's 12-week FMLA allotment until proper notification is given. As a result, the employee still enjoys the protections of the law, including continuation of health care coverage and reinstatement, but does not draw down the 12 weeks of protected FMLA leave until notice is given.

To prevent this problem, every time an employee requests a leave (such as for workers' compensation, short-term disability, or pregnancy), you should immediately determine whether the employee's need for leave is covered by the FMLA and then whether the employee is eligible for FMLA leave. If the leave qualifies, you should give the employee written notice that it will be counted against the FMLA's 12-week entitlement.

6. Review your HR policies and procedures.

Clearly written policies that are regularly reviewed can be both an effective employee relations tool and a good defense against employee lawsuits. In contrast, policies that are out-of-date or improperly applied can have exactly the opposite effect. So, make sure that your policies reflect any new laws, regulations, and court cases that can affect both policy language and how you implement the policies. Most experts suggest both a thorough review at least once a year and the use of a notification service or publication to keep you posted during the interim. Of course, if you revise any of your policies, you should distribute and thoroughly explain the changes to all employees.

* Ensure Success – Don't Get Overwhelmed *

Many successful executives will tell you that the best route to achievement is commitment followed by action. In this case, think in terms of "must" and "will" rather than "should" when you address the six HR items suggested above.

Another way to ensure success is to break up these six priorities into groups and tackle them three at a time. Studies have shown, particularly in the military, that personal effectiveness diminishes dramatically as you take on more than three priorities at once. So, plan your HR priorities accordingly and take steps to implement these positive actions so that you can enjoy the benefits of better HR management.