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HR Webinar Series June 2021

  1. HR Webinar Series 2021 Presented by: Kris Tanner, Director of HR Daniel Ditto, Compliance Officer
  2. AGENDA  FLSA (Fair Labor Standards Act)  1099 Contractors  Sexual Harassment  FMLA (Family Medical Leave Act)  ADA (Americans with Disabilities Act)  Workers Compensation  Protection for LGBTQ Employees (Lesbian, Gay, Bi-Sexual, Transgender, Queer)  State Guidelines for Termination  Severance Agreements  State Unemployment Insurance  Documentation
  3. FLSA- Fair Labor Standards Act  What is it?  Establishes minimum wage  Overtime  Record keeping  Youth employment  Governed by DOL and Wage and Hour
  4. Minimum Wage and Overtime  Federal Minimum Wage is $7.25  Remember, each state is different  Overtime  Generally, over 40 hrs with exceptions  Remember, some states are different  Paid Time and a half  Exemptions — prove you don’t need to pay overtime
  5. Record Keeping  Must keep records of employee information  Birthdates  Social security numbers  Address  Lots more  Time keeping records
  6. Youth and Child Labor Rules  Rules are specific to age, industry and nature of the work  Violations are very expensive  Remember states have their own rules
  7. Overtime Exemptions  Employers can’t simply decide an employee is exempt  Usually, the biggest mistake employers will make regarding FLSA  Most common exemption are salaried individuals  Outside sales  Commonly called “White Collar Exemptions”
  8. Salaried Overtime Exemptions  Salary Basis Test- $684 per week  Important but only part of the test  Duties Test  Executive  Discretion  Education or advanced knowledge  Recognized creative field
  9. How Can Ampian Help? Provides software and database for record keeping 1 Consult and help build job descriptions 2 Review, consult, and document overtime exempt positions 3 Trouble shoot any deviations in pay that may arise in conflict of FLSA 4
  10. W-2 Employees vs Contractors  Misclassifying employees as contractors is a common DOL violation  Misclassifying employees can become time consuming and costly  Classifying an individual as a contractor is determined by a group of circumstance  “Economics Reality Test”  Determined by the totality of the circumstance  Behavioral - Control what, when, and how  Financial - Control of economic aspects of job and method of payment  Type of Relationship - Benefits? Length of terms? Contract agreement and documentation?
  11. Economics Reality Test  A contractor should be treated as another company  Factors weighed in the test  Is the contractor a licensed business?  Does the contractor use his/her own tools and equipment?  Does the contractor have control of his/her own hours, work, direction?  Does the contractor have multiple clients?  Does the contractor promote themselves to grow their business  Does the contractor invoice for work done?
  12. Contractor No No’s  Call them contract employees or employees  Pay them through payroll  Provide contractors with benefits  Discipline them or write them up  Require them at meetings  Control their schedule
  13. How Can Ampian Help? Help you build job descriptions 1 Consultation for review of contractor relationships 2 Application of Economics reality test by experienced HR advisors 3 Guidance on documentation of any transition in classification 4
  14. Sexual Harassment Prevention Introduction  Sexual harassment training is not required under federal law. However, many states have enacted legislation specifically requiring sexual harassment training.  EEOC recommendation  At a minimum anyone in a supervisory position should receive training on Sexual Harassment as both they (individually) AND the company can have liability associated with how a supervisor or manager responds to a complaint.
  15. What is Sexual Harassment?  Unwelcome sexual advances  Requests for sexual favors  Other verbal or physical conduct of a sexual nature that affects an individual’s employment, unreasonably interferes with his or her work performance or creates an intimidating, hostile or offensive work environment
  16. Impact on Sexual Harassment to the Business  Sexual harassment in the workplace harms everyone  Offer employees a safe and comfortable work environment  Engaging in or not reporting sexual harassment a violation of Title VII of the Civil Rights Act  Liability for the employer may be federal, or state law or civil litigation  By federal law you can not ignore
  17. Remedies for Sexual Harassment Judgement EEOC remedies for a sexual harassment or sex discrimination complaint may include:  Job reinstatement  Back pay and benefits the victim should have earned  Compensatory damages  Punitive damages  Liquidated damages (in sex-based wage discrimination) equal to the amount of back pay awarded to the victim
  18. How Can Ampian Help? Help you establish a policy against sexual harassment 1 Consult on specific state requirements or training required for states where you operate 2 Help find a training program that works for your employee population 3 Consult on investigation steps in the case of a sexual harassment complaint 4
  19. FMLA  The Family and Medical Leave Act (FMLA) was passed in 1993  Most beneficial of employee related federal programs  Employers are often hesitant to offer FMLA, but please note that this is federal law, and if your business meets the employer requirements, it is a legal requirement to offer
  20. Employers Covered by FMLA Definition of a covered employer: • Private-sector employers with 50 or more employees are considered a covered employer • Separate business may be part of single employer for FMLA if there is common management, or other factors
  21. Employees Eligible for FMLA An employee is eligible when they meet the following criteria: • Works for a covered employer. • Has worked for the employer for at least 12 months. (Does not need to be consecutive) • Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave. • Works at a location where the employer has at least 50 employees within 75 miles.
  22. Basic Provisions of the FMLA Qualifying reasons for FMLA leave: 1. For the birth of a child and to care for the newborn child. 2. For placement with the employee of a child for adoption or foster care. 3. To care for the employee’s spouse, child or parent with a serious health condition. 4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job. 5. Because of any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status). 6. To care for a covered service member with a serious injury or illness if the employee is the spouse, child, parent or next of kin of the covered service member.
  23. How Can Ampian Help? Provide training for leaders and managers 1 Partner on communication of proper FMLA forms and requirements 2 Partner with you for tracking of FMLA protected time off 3 Consult you on employee eligibility and certification 4
  24. ADA  The Americans with Disabilities Act (ADA) of 1990 was the first comprehensive civil rights law in this country that addressed the needs of people with disabilities. The law was amended by the ADA Amendments Act (ADAAA) of 2008. It applies to employers with 15 or more employees.  The ADA as amended prohibits discrimination in employment, public services and accommodations, and telecommunications. It also requires employers to make a reasonable accommodation to an applicant or employee if needed to perform the essential functions of a job.
  25. Covered Employment Practices / ADA The ADA makes it unlawful to discriminate in these employment practices:  In addition, the ADA prohibits an employer for retaliating against applicants or employees for asserting their rights under ADA  The act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social, or other relationship or association with an individual with a disability. Recruitment Pay Hiring Firing Training Job Assignment Promotion Benefits Tenure Layoff Leave All other employment related activities
  26. Covered Individuals Under the ADA  Employment discrimination is prohibited against qualified individuals with disabilities. Covered individuals include applicants for employment and employees.  As defined by the ADA, a qualified individual with a disability is: 1) an individual with a disability who satisfies the requisite skill, experience, education and other job- related requirements of the employment position and 2) an individual who, with or without reasonable accommodation, can perform the essential functions of the job  An individual is considered to have a disability if he or she 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. This is just a sample of who is covered under the ADA
  27. How Can Ampian Help? Help you establish policies regarding non-discrimination of any protected class including ADA 1 Provide high level training for leaders and managers 2 Consult with you on reasonable accommodations 3 Consult on ways to reduce liability 4
  28. Workers Compensation  Insurance that all employers are required to provide  Every state mandates it but each state has a different process  Injuries, even small, should always be reported  Injuries need to be reported in a timely fashion  Injuries need to be tracked for annual OSHA reporting
  29. How Can Ampian Help? Help shop for and manage your workers comp policy 1 File and manage Incident reports when and employee injury occurs 2 File OSHA annual reporting 3 Consult on workers comp issues that arise 4
  30. Equal Employment Opportunity The U.S. Equal Employment Opportunity Commission enforces Federal Laws prohibiting employment discrimination. These laws protect employees and job applicants against employment discrimination when it involves: Unfair treatment because of race, color, religion, sex (including pregnancy, gender identity and sexual orientation), national origin, age, disability or genetic information. Harassment by managers, co-workers, or others in the workplace, because of race, color, religion, sex (including pregnancy) national origin, age, disability or genetic information. Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability. Retaliation because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.
  31. EEOC Charges  The EEOC has made it VERY easy for an employee to file a charge of discrimination. It is a click of a link on the EEOC website.  The fact that the EEOC has taken a charge does not mean that the government is accusing anyone of discrimination. The charging party has alleged that an employer has discriminated against him or her and it is the EEOC's job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred.
  32. EEO Record Keeping Requirements  The laws enforced by EEOC require employers to keep certain records, regardless of whether a charge has been filed against them. When a charge has been filed, employers have additional recordkeeping obligations. The EEOC also collects workforce data from some employers, regardless of whether a charge has been filed against the company.  Employers are required to post notices describing the Federal laws prohibiting job discrimination based on race, color, religion, sex (including pregnancy) national origin, age, disability or genetics.
  33. How Can Ampian Help? Help you establish a policy regarding non-discrimination 1 Help you formalize a specific EEO policy including identification of who an employee could speak to if they have a concern 2 Provide labor law posters including all required legal postings 3
  34. LGBTQ Protection  In June 2020, the US Supreme Court decided that the 1964 Civil Rights Act, which ended segregation in public places and banned employment discrimination on the basis of race, color, religious, sex or national origin will now include the same protections to individuals who are gay, lesbian and transgender employees.  Prior to this change in 2020 some states (more than ½) allowed discrimination and employment action against these individuals.  The supreme court held that “an employer who fires an individual merely for being gay or transgender violates Title VII and makes it unlawful to fail, or refuse to hire, or to discharge any individual, or otherwise discriminate against any individual” including those listed above. Source:
  35. How Can Ampian Help? Help you add any language needed to existing policies regarding the update to include LGBTQ employees 1 Help you formalize a specific EEO policy including identification of who an employee could speak to if they have a concern 2 Provide labor law posters including all required legal postings 3
  36. State Guidelines for Terminations  Terminating an employee will be somewhat different in every state  Termination will trigger several potential actions, many required by law  Final paycheck — paid out in a certain amount of time  Benefits — close them out of allow employee to take them on  PTO — payout required in some states  Deductions in pay — different in every state and sometimes not allowed, Minimum wage applies  Paperwork — Discrimination, protection, unemployment, etc.
  37. How Can Ampian Help? Advise you of state by state requirements 1 Pay employees within required legal guidelines 2 Consult on proper termination 3
  38. Severance Agreements  Not required  Can be a good protection tool  States have specific laws or they are void  Employees have time to revoke or accept  Careful not to create precedence or discrimination
  39. How Can Ampian Help? Consult and advise you through the termination process and manage Payroll and Benefits 1 Provide legal severance agreements and document decisions 2 Provide consultation and help in addressing post termination disagreements that might occur 3
  40. Unemployment What is State Unemployment Insurance? • Temporary financial assistance to unemployed workers who are unemployed through no fault of their own. • Each state administers a joint state/federal unemployment tax program that provides cash to eligible workers. SUTA is a quarterly tax paid by the employer. Ampian files these taxes on our client’s behalf each quarter (941 quarterly taxes) • As unemployment claims are won or lost, your SUTA rate increases / decreases over time. To keep costs low, our goal is to avoid paying unemployment to former employees who are terminated for just cause.
  41. Unemployment - Manager training - Progressive Discipline - Employee Handbooks - Addressing issues at the first sign of concern - Ampian involvement early and often How do I keep my SUTA rate low?
  42. How Can Ampian Help? Ensure you have a current employee handbook 1 Help properly prepare and document employee corrective action and termination 2 Respond to unemployment claims with your input, but on your behalf 3 Prepare Employers for Unemployment Appeals 4
  43. A Final Word on Documentation  Through the employee lifecycle, there are many opportunities to properly document:  Hiring  Evaluations or Performance Reviews  Training  Corrective action  and more…  Clear and complete documentation is critical to employee management and successful dismissal of an employee for cause  If it’s not documented, it didn’t happen