Answers to some common HR, employment law, and employer best practice questions.
General HR Questions
I need to create an employee handbook for my organization. Where do I start?
The thought of creating an employee handbook might seem overwhelming, but we have you covered. We have several templates that were updated late 2017 year. It’s a great place to start as it covers all of the necessary topics related to employment guidelines. The templates are downloadable in Word and can be adapted to meet your needs.
If you have questions as you are creating your handbook, don’t hesitate to reach out to our HR team for additional support.
Why do I need to have employment posters on display in my organization?
Also, be sure to check to see if there are any additional posters required for your state. Most are available for free through your state Department of Labor website.
Help! I have an employee claiming discrimination. What do I do?
I have a personnel issue going on between two employees. Where do I start?
Conducting an HR investigation will help you understand all sides of the situation. First thing, document all conversations. That will be key for this. Meet with all parties involved separately and get written statements. Then get witness statements to corroborate the stories and then you get to decide what to action to take from there. We recently held a webinar about conducting HR investigations. You can watch it here.
I want to employ a minor. What do I need to know?
Can I put restrictions on how employees dress or do their hair at work?
Yes. Generally, employers have the right to create and enforce consistent and dress and hygiene policies, as long as those policies are non-discriminatory. But, it is a good idea to take in to consideration which restrictions are necessary for safety or job performance and which may be based on your personal preference. Overbearing polices can turn off potential employees and make it hard to recruit and retain top talent.
Paying Employees Correctly
How do I know if an employee should be exempt or non-exempt from overtime?
This can be tricky, but doable with our overtime exemption duties test. Go through the worksheet for each position to know the best way to classify your employees.
I own two separate entities, but I have employees who work for both. If an employee works 30 hours at Company A and 30 hours at Company B in the same week, do I have to pay them overtime?
Once again, it depends on if the organization is classified as “Joint Employment” under the FLSA or not. This is something to evaluate case-by-case. Here are some guidelines to follow:
If the facts establish that the employee is employed jointly by two employers, i.e. that employment by one employer is not completely disassociated from employment by the other employer, all of the employee’s work for all of the joint employers during the workweek is considered as one employment. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable overtime provisions with respect to the entire employment for the particular workweek.
If the facts establish that there is no “Joint Employment” meaning an employee works for two organizations with the same owner but there is no joint employment relationship, each individual organization will be responsible for its’ own overtime provisions.
Joint employment relationships generally will be considered to exists in situations such as:
- Where there is an arrangement between the employers to share the employee’s services. For example, to interchange employees between the two organizations; OR
- Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; OR
- Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reasons of the fact that one employer controls, is controlled by, or is under common control with the other employer.
Do I need to include bonuses in non-exempt employee overtime pay calculations?
Yes. The regular rate of pay is determined by adding all earnings divided by all hours worked for the week. That means you have to include bonus pay, piece rate, travel time pay, etc. in the employee’s total earnings and divide that by all hours worked to determine the correct overtime rate. If you are a Helpside client, your Payroll Specialist can help.
Do I have to pay employees for work I know they are doing off the clock?
If a non-exempt employee is working after hours, they need to be paid for that time. Even if you have told them not to work after hours or off the clock. In this case, following a progressive discipline program to correct the employee behavior is your best bet.
Are we required to pay employees for the time they spend putting on and taking off required safety equipment?
Yes. If the safety equipment is required by law, the employer, or the nature of the work, the time spent putting on and taking off gear on the employer’s premises must be paid.
When can I make deductions from an exempt employee’s paycheck?
You can deduct for a full day absence or replace a full day with vacation or sick leave, as long as you have a bona fide vacation or sick leave policy in employee policy guide. But if the employee works for even a few minutes before going home on a particular day, you are required to pay wages for the full day. Check out our Paid Time Off Toolkit for a sample Bona Fide Leave Policy.
Can I do an unpaid internship?
If you are working with a local college or university then, possibly. If your goal is to get students to do work for you for free that you would otherwise have to pay people to do, no. Any work that benefits the company must be paid. These relationships need to be structured appropriately to ensure that you do not violate the Fair Labor Standards Act (FLSA). Check out our blog on unpaid internships for more details.
Internship programs (paid and unpaid) can be great recruiting tools when structured appropriately.
Can I have my entire workforce be 1099 contractors instead of W-2 employees?
While it might seem easiest to pay your team members as contractors, you may be liable for fines if they are in fact true employees. To understand the difference between contractors and employees, review this infographic.
Employee Termination and Separation
I’m terminating an employee, when do I have to pay them?
If you are terminating an employee within the state of Utah, you must pay them within 24 hours, meaning the terminated employee must either have a live check in hand or money direct deposited into his or her bank account within that time frame.
State laws on final pay after termination vary. Check the state laws where your employees are located here.
If I terminate an employee in the state of Utah on a Friday, does the 24-hour final pay law still apply?
Yes, the final check will either need to be delivered or deposited in the employee’s account within 24 hours of termination. Please remember to contact your Helpside payroll specialist as soon as possible and send him or her the separation notice form to ensure everything is processed correctly.
I work in an at-will state. Does that mean I can terminate an employee at any time?
Yes, as long as the reason for termination is not discriminatory. However, we always recommend you do your due diligence and follow progressive discipline before conducting a termination. If an employee is not meeting performance expectations, please follow the corrective action process. If you document carefully, this will allow you to demonstrate that the termination was for cause, which will make the employee ineligible for unemployment benefits and protect you against discrimination claims.
For more information about at-will employment, check out our blog.
An employee quit, but he hasn’t returned company equipment, can I withhold his final pay check?
According to the Fair Labor Standard Act (FLSA), you may not withhold an employee’s pay unless you have a signed deduction authorization form. If you are issuing company equipment, we highly recommend you present this form during your new hire orientation. A signed form still will not allow you to deduct the full cost of what is owed to you if it decreases the employee’s pay to below minimum wage for all hours worked during the final pay period.
If an employee fails to return company property, your only recourse may be to sue that employee in small claims court.
One of my employees called in sick, but I saw posts on social media that she was doing something fun. I want to terminate her. What should I be concerned about?
We know this is a sticky situation and like most things HR related, it’s not black and white. We recommend not using social media as a way to check up on employees who are out of the office. Keep business, business and don’t accept friend requests or connect with employees on personal social media accounts. Although such photos may seem incriminating, you never know when they were taken. Employees should be given the benefit of the doubt. For more on dealing with social media in the workplace, check out our webinar.
What is the difference between a severance agreement and a leave bonus?
A severance agreement is a document the employee signs agreeing to certain terms; specifically, that they won’t come after the employer for anything after separation. These agreements may hold up in court if violations of the terms happen.
A leave bonus has no merit in court. It is just free money given to the employee upon leaving the organization. This is sometimes done to help soften the blow of a termination.
I want to terminate an employee but am afraid of losing unemployment or worse. Would a severance agreement to protect my company?
It may, but we don’t recommend this process for all situations. Severance agreements are generally reserved for managers, directors, VPs, etc. If you start giving them to anyone in your organization, you may open yourself up for a discrimination case when you give it to one employee, but not the other. Plus, if you are terminating for poor performance and you give a severance, you are rewarding bad behavior and setting a precedence for it.
Following a progressive discipline process is the best way to protect yourself and your company from unnecessary unemployment and discrimination claims.
I received an unemployment claim from a former employee. What do I need to do?
Step 1. Decide if you want to fight it or not. If not, you do not need to do anything and the employee will likely receive unemployment.
Step 2. If you decide to fight it, provide all documentation you have for why the employee left the company to the state unemployment agency in a timely manner. Responses to these claims are time sensitive. We created this easy tool to help collect the necessary data.
Step 3. If a hearing is scheduled by the judge, be sure to participate.
If you are client of Helpside, you can contact us at any point in this process for assistance. We also encourage you to check out our webinar on Beating Unnecessary Unemployment Claims.
Who should be involved in an employee termination meeting?
There should be three people involved in a termination meeting. The leader who directly managed the employee’s performance and delivered previous corrective action discussions. An HR representative or executive leader to act as a witness. And, the employee who is being terminated. Learn more best practices by downloading our Employee Termination Toolkit.
Hiring, Drug Testing, and Background Checks
What questions should I avoid asking in a job interview?
Typically, any questions that could be considered discriminatory should be avoided. These include questions about age, race, ethnicity, family situation, marital status, military service, child care arrangements, mode of transportation, medical conditions, etc.
Here are some Sample Interview Questions you can use.
Which employers are required to participate in E-Verify?
That depends on what state your employees are in. In the state of Utah, a private employer who employs 15 or more employees on or after July 1, 2010, may not hire a new employee unless the employer is registered with and uses a status verification system such as E-Verify.
With an increased government focus on employment eligibility, we highly recommend that you utilize E-Verify. We would be happy to help you with this. To learn more, visit our E-Verify Program Intake Form.
How does “ban the box” impact hiring?
“Ban the box” laws limit an employer’s ability to ask a job applicant about his or her criminal background as part of the hiring process. In general, states with ban the box laws do not completely prohibit employers from asking about an individual’s criminal background or conducting a criminal background check. However, employers are typically prohibited from doing so until later in the hiring process as part of a conditional job offer.
If you are looking at implementing background checks, reach out to us at email@example.com
Will running a background check verify if the applicant is eligible to work in the United States?
No, although basic background checks will verify if the social security number provided is one that is valid through the Social Security Administration, it does not check whether the number provided is linked to that specific individual or if that individual is authorized to wok in the United States. In order to verify an employee’s employment eligibility, you will need to utilize E-Verify.
What is the difference between a county, state, and national criminal background check?
Each of these parts of a background check searches for criminal activity at different jurisdiction levels. Each system is individually managed and if you only search the national system, it is likely that it will provide you with outdated information that may contradict a county search. In order to get the most accurate results on an applicant’s criminal history, it is recommended that multiple jurisdictions are checked.
Do I need to have all employees complete Form I-9, even if I know they’re eligible for employment?
Yes, the Employment Eligibility Verification form, or Form I-9, must be on file for every employee who was hired after Nov. 6, 1986.
When an employee is hired, he or she should complete Section 1 of Form I-9. The employer must complete Section 2 of the form within three days of the date of hire. Section 2 involves checking the employee’s identity and employment eligibility by reviewing certain documents and recording information about those documents.
Review our I-9 online learning module and examples for more tips and best practices.
How do I fill out an I-9 form correctly?
Easy peasy. Review our I-9 online learning module and examples for best practices. Filling out an I-9 correctly can save you and your organization from unnecessary fines.
Who pays for a drug test? What if I have an employee who tested positive on a drug test? If I retest, who pays for that test?
As an employer, if you are requiring your employees to complete a drug test, you are responsible for the costs involved, even if it is a retest. To get signed up for our drug testing program, see our Drug Test Agreement and pricing details for more information. Also, make sure you are treating all positive drug screens the same, or you could get into trouble with discrimination. We are happy to walk you through this.
Can I do a random drug test on an employee I suspect is on drugs?
You cannot “randomly” drug test someone you believe is using illicit substances. You can do a reasonable suspicion drug screen, which requires getting two members of management to observe the employee and confirm that they both agree the employee should be drug tested for a reasonable suspicion. Doing a “random” drug test that is not a true random will get you in trouble for discrimination.
Employee Breaks, Leave, and PTO
When is an organization required to offer Family Medical Leave (FMLA)?
Employers with 50 or more employees within a 75-mile radius are required by federal law to provide FMLA for employees experiencing a qualifying event. If you have fewer than 50 employees, your company may still opt in to FMLA. Once you do, you must remain in the program until for one rolling calendar year after the last person completes his or her FMLA to avoid any sort of discriminatory claim. For more on FMLA, visit our FMLA job aide, toolkit and webinar.
What do I need to know about offering paid time off (PTO) to my employees?
The Fair Labor Standards Act (FLSA) does not require employers to offer PTO, but the majority of businesses do offer some paid leave as an incentive and perk to attract and retain talent. If you do offer PTO, state laws differ around payout of PTO upon termination, whether voluntary or involuntary. You should set up a PTO plan that works best for your business and your company culture. Please see our PTO toolkit for recommendations and best practices.
What do I need to know about offering paid holidays to my employees?
No, it’s not required by federal law to pay employees who do not work on holidays, but most employers do so to create an incentive to recruit and retain employees. If an employee works on a holiday, you must pay them at least their regular rate of pay, but most employers choose to pay a premium rate.
What do I need to know about offering paid breaks to my employees?
There is no federal law requiring meal or rest periods, but every state has different labor laws that may apply. Know the laws surrounding meals and rest periods for your state.
In Utah, employers are not required to offer paid (or unpaid) meal and rest periods for adult workers. Minors under the age of 18 are entitled to an paid or unpaid meal period of at least 30 minutes not later than five hours from the beginning of their shift. A paid or unpaid rest break is required for minors of at least 10 minutes for every three hour period worked.
Please keep in mind that nursing mothers may be entitled to unpaid breaks to express breast milk for her nursing child for one year after the child’s birth. More information on breaks for nursing mothers can be found here.