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* Jeffry D. Proul, Registered Representative of LifeMark Securities Corp., 400 West Metro Financial Center, Rochester, NY 14623 (585) 424-5672 Member NASD/SIPC Vital Signs Insurance Services, Inc. is not affiliated with LifeMark Securities Corp. CONFIDENTIALITY NOTICE: Communications are Confidential Information of LifeMark Securities Corp. and may also be privileged.

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Do We Pay Employees For Weather Related Closures

By |January 16th, 2019|

Question:
We’re going to close our worksite due to inclement weather. Do we have to pay employees?

Answers from HR ProfessionalAnswer from Sarah, PHR, SHRM-CP:

Non-exempt employees need to be paid only for actual hours worked plus any reporting time pay that may be required by the state (this sometimes applies when employees show up for work but are sent home early).

Exempt employees, on the other hand, must be paid when the employer closes due to inclement weather, whether they do any work or not. You may require exempt employees to use accrued vacation or paid time off for the day if that is your regular practice when the workspace closes. However, exempt employees without enough paid time off to cover the absence must still be provided with their regular salary during the closure.

Many companies have an inclement weather or emergency closure policy for these sorts of situations. These policies typically address communication in the event of worksite closures and options for employees. You might, for example, allow employees to work from home. If you don’t have a policy like this in place, now might be the time to implement one. You can find an inclement weather policy in the HR Support Center Policy Library.

Sarah has extensive Human Resources experience in the legal, software, security and property preservation industries. She has a Business Communications degree from Villa Julie College (now Stevenson University) and a master’s certificate in Human Resources Management and a Strategic Organizational Leadership certification from Villa Nova University. Sarah is also a member of the National Society of Human Resources Management and has managed the HR function for small startup companies to mid-sized/large organizations.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

When Can An Employee Use FMLA?

By |January 9th, 2019|

Question:
Can you explain when an employee can use FMLA?

MeganAnswer from Megan, PHR, JD:

To take FMLA leave, an employee must work for a covered employer, be an eligible employee, and be using the leave for a covered reason.

An employer is a covered employer if they have 50 or more employees.

An employee is an eligible employee if they have worked for the employer for at least 12 months in the last seven years, worked at least 1,250 hours for the employer during the 12-month period immediately before the leave, and work at a location where the employer has at least 50 employees within 75 miles.

The following are covered reasons for leave under FMLA:

• The birth of a child and to care for the newborn child within one year of birth;
• The placement of a child for adoption or foster care and to care for that child within one year of placement;
• To care for the employee’s spouse, child, or parent who has a serious health condition;
• A serious health condition that makes the employee unable to perform the essential functions of their job;
• Any qualifying exigency because the employee’s spouse, child, or parent is a military member on active duty.

Under FMLA, a covered employer could conceivably have no eligible employees. Similarly, an employee who works for a covered employer and has a serious health condition could not be an eligible employee because, for example, they don’t work at a worksite with 50 or more employees within 75 miles.

Megan graduated from the University of Maryland, magna cum laude, and from Lewis and Clark Law School, cum laude. She has extensive work experience in a variety of industries, which she draws on to help clients with their HR questions.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Employees Exempt From Minimum Wage And Overtime

By |January 6th, 2019|

Did You Know?

Most employers have at least a few employees that they classify as exempt from minimum wage and overtime, but many don’t realize that they need to do more than pay these people a salary in order to make the exemption legal. Most employees that are classified as exempt must be paid on a salary basis (which means most deductions from pay are not allowed) and pass a specific duties test, depending on which exemption the employer is using.

Perhaps the most commonly used exemption is the Executive Exemption – it’s generally applied to managers. But calling someone a manager isn’t enough. An employee must pass all parts of this test to be exempt; if they don’t, they must instead be paid based on hours worked, including time and a half for hours worked over 40 in a workweek. Let’s take a look at the test.

1. The employee’s primary duty is the management of an enterprise, department, or subdivision; and
2. They customarily and regularly direct the work of two or more full-time employees (or equivalent); and
3. They have the authority to hire, fire, or promote other employees or effectively recommend similar actions.

Fairly common mistakes we see include classifying someone as an exempt executive when they don’t manage two or more full-time employees (there’s no exception to this rule for small businesses) and classifying assistant managers as exempt when management is not their primary duty or when they don’t have significant authority over those they manage.

To learn more about exemptions from overtime and the various duties tests that need to be applied, go to the HR Support Center and search for exemption. There are resources in many formats, including 2-Minute HR Trainings, guides, checklists, articles, Q&As, and Law pages.

Contact Us

Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com

New Minimum Wages

By |January 5th, 2019|

HR Tip of the Month

Minimum wages went up in many states and cities across the country on January 1 (December 31 for New York increases). Employers should be aware that the new, higher wages must be earned starting on the day the increase takes effect – not the next payroll period. In many cases, mid-cycle adjustments will be required.

Contact Us

Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com

Risk Reduction Through Progressive Discipline

By |January 4th, 2019|

Risk Reduction Through Progressive Discipline

Because behavioral problems and poor performance can be detrimental to the bottom line, many employers want to be rid of problematic employees ASAP. Small businesses in particular may not feel that they have the time or money to work on correcting bad behavior or improving poor performance. Additional supervision alone can be costly and a burden on already busy managers. Immediate termination often feels like the easier path, especially in industries in which it’s relatively painless to find a replacement. But, despite the ease of immediate termination, we generally recommend that employers first use progressive discipline.

Terminating employment always comes with risk, even when it’s done for good cause. A terminated employee might own up to their mistakes and understand the basis for their termination, but they might also cause trouble by claiming they were terminated for an illegal reason. This is where progressive discipline comes in handy.

As its name indicates, progressive discipline involves a progression of disciplinary actions with escalating consequences. When used to give employees with behavioral or performance problems time and opportunity to improve, it demonstrates good faith and builds your employer brand. And if the process results in termination, you can show the termination was for cause. Without a record of trying to correct the behavior or performance, it’s very easy for the terminated employee, a lawyer, or a jury to fill in the blanks with their own explanation for why the employee was terminated.

The Steps of Progressive Discipline
Progressive discipline generally begins with a conversation to identify and address the behavioral or performance issue. Often this conversation is part of a regular coaching or check-in with the employee, and some HR professionals view this conversation as a step before actual progressive discipline begins. You make the employee aware of their unsatisfactory behavior or performance, make your expectations clear, give them any guidance or tools available to help them succeed, and allow them to bring their concerns to your attention.

If the employee fails to improve after coaching, the next step is generally to give them a verbal warning and let them know additional discipline may follow if they don’t improve.

The next escalation is usually a written warning that the employee signs. If the problem is performance-related rather than behavioral, a Performance Improvement Plan (PIP) might be appropriate at this stage. A PIP is formalized action plan for employee improvement. It typically lasts at least 60 days, has commitments from both the employee and management, and contains realistic, attainable goals. Whether you give a simple written warning or implement a PIP, you should be perfectly clear as to what will happen if the employee fails to improve or modify their behavior. (You can learn more about PIPs in the HR Support Center – search performance improvement. And look out for a 2-Minute HR Training on this topic on the 10th.)

If the problem isn’t resolved after a written warning or PIP, stay true to your word and proceed to the next step, whether that is another written warning, a final written warning, suspension, or termination.

Guidelines When Using Progressive Discipline
First and foremost, treat the steps in your progressive discipline process as suggestions, not as a formula that has to be followed in every case. Your employee handbook should have a policy that puts employees on notice that poor performance or bad behavior will lead to discipline, but it should not lay out a specific escalation process. If you tell employees that they’ll be subject to a certain set of steps or entitled to a certain process, they can hold you to that policy later and claim they’ve been discriminated against if they don’t receive the benefit of each step in the process. And there are of course occasions in which progressive discipline should not be used. Violence or threats of violence, for example, often merit immediate termination following an expedient investigation.

Second, it’s imperative that you document everything throughout the progressive discipline process. Even a verbal warning should be noted in the employee’s personnel file. If something isn’t in writing, it might as well not have happened.

Third, if the conversation pertains to serious behavior issues like sexual harassment, it’s a good idea to have an HR representative or other manager in the room as a witness. If the employee later claims the conversation went down differently than it did, the witness can set the record straight. That said, if having a third party in attendance isn’t possible, just be sure to document the conversations. You certainly don’t need to refrain from progressive discipline just because you can’t get a witness for the meetings. On the other hand, if you’re talking to an employee about a performance issue, a third party generally isn’t necessary (unless you expect trouble). Having an audience present will likely be embarrassing for the under-performing employee and won’t provide much risk mitigation.

Fourth, stick to facts. You’re disciplining an employee because they’ve done something wrong or poorly. Focusing on the facts of the case provides the employee with a clear path going forward and protects you if the employee later challenges you on any of the steps of the process.

Finally, be compassionate, but not apologetic, particularly if you’ve reached the point of termination. If you’ve followed your internal progressive discipline policy and the employee has failed to improve, the employee shouldn’t be surprised when termination occurs.

Contact Us

Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com

Social Media Posts By Employees

By |January 3rd, 2019|

Question:
We’ve become aware of a social media post by one of our employees in which he complained about his working hours and pay. The post was “liked” by several of his coworkers, one of whom commented “Preach!” and another of whom posted an angry face emoji. Can we discipline these employees for complaining about the company on social media?

Answer from Kim, SPHR, SHRM-SCP:

I would recommend against disciplining the employees for these activities on social media as their speech is almost certainly protected under Section 7 of the National Labor Relations Act. Section 7 protects certain “concerted activity” by employees, which is activity done in concert, meaning more than one employee is involved. This kind of activity is protected if it’s related to their terms and conditions of employment (e.g., pay and scheduled hours).

In this case, because the employee complained about their pay and hours in a virtual space and other employees joined in – expressing their agreement through “likes,” emojis, and comments – the actions are clearly concerted activity and therefore protected.

I understand, however, that this sort of social media activity by employees can be frustrating. One way to reduce the likelihood that employees will air their grievances on social media is to establish a means for them to do so internally. Employee surveys, comment boxes (whether physical or online), stay interviews, and true “Open Door” policies are all ways to solicit this feedback. The key is to be willing to listen and act on the information you gather. If employees think taking their complaints directly to a manager will end in retaliation, or simply won’t lead to any change, they’re more likely to keep complaining on the internet.

Kim is a results-driven HR Professional with experience from diverse industries, including but not limited to, transportation, environmental services, staffing, pharmaceutical, market research, banking, retail, software development and education non-profit. In her spare time, Kim enjoys the beautiful view from her home and being with her husband and their German shepherd, Fin.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Are depression and anxiety considered disabilities?

By |December 19th, 2018|

Question:
Are depression and anxiety considered disabilities?

Answer from Kyle, PHR:

They can be, yes. Under the Americans with Disabilities Act (ADA), an individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

If an employee informs you that they have anxiety or depression (or any other medical condition) and requests an accommodation, you should begin the interactive process to see what, if any, reasonable accommodations you can provide. As part of the interactive process, we recommend that you ask for documentation from a medical provider via a medical inquiry form (we have one in the HR Support Center). This should provide you with information about whether the employee meets the criteria for being disabled, as well as the nature and duration of any necessary accommodations.

Kyle is a professional author, editor, and researcher specializing in workplace culture, retention strategies, and employee engagement. He has previously worked with book publishers, educational institutions, magazines, news and opinion websites, nationally-known business leaders, and non-profit organizations. He has a BA in English, an MA in philosophy, and a PHR certification.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Court Ruling on ACA | Impact on Employers

By |December 19th, 2018|

Court Ruling on ACA Has No Immediate Impact on Employers

Last Friday, a federal judge in Texas ruled that the entirety of the Affordable Care Act (ACA) was unconstitutional due to changes made to the tax code last year. He said, in short, that eliminating the individual tax penalty made the whole law unworkable.

The judge did not issue an injunction, so the law remains fully in effect for now. There are no impacts to current or 2019 coverage and no changes to enrollment through healthcare.gov or through state-run Marketplaces. This decision will be appealed, and a final determination on this issue could easily take a year. Lawmakers may attempt to make fixes in the meantime.

We will keep you informed of relevant court decisions or acts of Congress.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support center cannot be held legally accountable for actions related to its receipt.

Who Can Document A Disability

By |December 5th, 2018|

Question:
Who is considered an appropriate health care professional for getting documentation about a disability under the Americans with Disabilities Act (ADA)?

Answer from Margaret, PHR, SHRM-CP:

Whether a particular health care provider would be considered an “appropriate health care professional” would depend on the nature of the disability and the functional limitation it imposes. For example, if you were requesting documentation for an accommodation request concerning a mental health condition, a psychiatrist or psychologist would be an appropriate professional, but a physical therapist would not be as they would not have the training to diagnose or treat such conditions.

According to the Equal Employment Opportunity Commission, appropriate professionals include, but are not limited to doctors, psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. But this list should not be construed to be all-inclusive. Other medical professionals who are knowledgeable about the employee’s condition may also be appropriate under the circumstances.

Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Cal/OSHA Form 300A Data Due December 31

By |December 4th, 2018|

California Law Alert

Cal/OSHA Form 300A Data Due December 31

Due to amendments made late in the year to bring Cal/OSHA recordkeeping requirements in line with the federal OSHA program, many employers in California are now required to submit Form 300A data by December 31, 2018. The employers described below should follow the instructions posted at federal OSHA’s ITA website to submit their data for calendar year 2017.
• All employers with 250 or more employees, unless specifically exempted in Appendix A.
• Employers with 20 to 249 employees in the specific industries listed in Appendix H (begins on page 8).

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support center cannot be held legally accountable for actions related to its receipt.