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.
If you have questions as you are creating your handbook, don’t hesitate to reach out to our HR team for 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 blog: https://www.helpside.com/understanding-employee-vs-independent-contractor/
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 firstname.lastname@example.org
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. 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.
What is the Families First Coronavirus Response Act (FFCRA)?
The Families First Coronavirus Response Act (FFCRA), is new legislation designed to help employees who must miss work due to the COVID-19 outbreak and provide tax breaks to employers for providing paid leave. The law will become effective April 1, 2020 (according to the most recent update from the Department of Labor).
The Department of Labor has provided a notification poster for employers. Please make sure this is posted or provided to employees.
More information about the FFCRA itself, including answers to some common questions, can be found below.
Who is a Covered Employer: The FFCRA has two main leave components: expanded FMLA and emergency paid sick leave. Both components apply to private employers with fewer than 500 employees. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business. Initial details about how to qualify for this type of exemption are available here (see question #58): https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
Paid Sick Leave
Generally, the law states that covered employers must provide the follow types of paid leave to all qualified employees:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work or telework because the employee is quarantined (due to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (due to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or childcare provider is closed or unavailable for reasons related to COVID-19
Qualifying Reasons for Paid Sick Leave:
Under the FFCRA, an employee qualifies for Paid Sick Leave if the employee is unable to work and unable to telework due to a need for leave because the employee:
(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
(2) has been advised by a health care provider to self-quarantine related to COVID-19;
(3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
(4) is caring for an individual subject to an order described in (1) or self-quarantine as described in (2); or
(5) is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19
A covered employer must provide to employees that it has employed for at least 30 days:
- Up to an additional 10 weeks of expanded FMLA at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.
Qualifying Reasons for Expanded FMLA Leave:
As noted above, an employee qualifies for expanded family and medical leave if the employee is unable to work and unable to telework due to a need for leave because the employee is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19.
The law does not allow for retroactive pay, so any paid time off and associated tax credits would begin on that date. This paid leave is also separate from any other leave offered by the employer, so you can not require employees to use PTO or other paid time in lieu of this leave. A layoff is not a qualifying event that triggers coverage under the law. Employers should be cautious in laying off workers who may qualify for this type of leave to avoid retaliation or discrimination claims.
The Department of Labor has stated that they will not enforce penalties for not complying with the new law for 30 days after it is enacted, as long as an employer is putting forth a good faith effort to comply. This means that if mistakes are made in trying to figure out exactly how to comply with the new law, employers will be given a chance to fix them without penalties.
Tax Credits for Employers:
The law includes employer tax credits equal to the cost of providing paid leave to employees. Eligible employers are also entitled to an additional tax credit based on costs to maintain health insurance coverage for the eligible employee during the leave period
Here is some more helpful information from the Department of Labor:
How should Helpside clients handle FFCRA leave requests from employees?
Here are some steps Helpside clients can take now if an employee requests leave under the FFCRA:
- STEP 1: Ask the employee to complete the FFCRA Paid Leave Request form. If an employee is unable to complete the form on their device, an email with the same data and attached documentation can be used in place of the form.
- STEP 2: Have employee provide all applicable documentation (see leave request form for details).
- STEP 3: Determine eligibility for paid leave under the FFCRA. Helpside HR is always available via phone or email to assist on making these determinations if you are unsure.
- STEP 4: Keep a copy of the request and documentation for your records AND send a copy to email@example.com.
- STEP 5: Communicate paid leave for your employee using the corresponding pay code when paying the employee during their FFCRA qualifying leave. Pay codes can be found here.
- STEP 6: For leave lasting beyond the 80 hours/10 days, contact Helpside HR for guidance.
What should I do if an employee tests positive for COVID-19?
Employers are responsible for handling the situation swiftly to protect the health of other employees while preserving the affected employee’s confidentiality. In addition to notifying the company and its customers, employers must also disinfect the office and evaluate next steps.
If you’re in this situation, you may be wondering what you need to do. Here is an overview of how you can respond to finding out an employee has COVID-19.
Responding to the Employee
When an employee notifies you that he or she has tested positive for COVID-19, you should respond calmly and empathetically. In these uncertain times, it can be easy to overreact, but you need to ensure that the infected employee is treated with compassion. Reassure the employee that their identity will remain confidential and be sure to help them coordinate taking leave or paid time off until they’ve recovered.
You will also need to ask the employee some potentially difficult questions, including gathering a list of who employee has been in contact with in the last two weeks. Obtaining this information is essential so that you can directly notify customers and other employees that they may have been exposed to COVID-19.
Notifying Employees and Customers
Without disclosing the identity of the infected employee, you need to notify their co-workers, customers and the rest of the company.
Directly notify any co-workers or customers who had direct contact with the ill employee in the past two weeks. Because of the sensitive nature of the information, it is probably best to talk to individuals over video chat or phone, since in person communication is not feasible. Be sure to remain calm and let them know that someone they have been in contact with or has been in their physical work area has tested positive for COVID-19. Recommend that they should self-quarantine for the next 14 days and monitor themselves for the symptoms of COVID-19. If feasible, allow eligible employees to work from home during this time. You may get a lot of questions that you simply can’t answer. Leave that to the experts. Recommend that employees contact a health care provider (using telehealth if possible) and refer to the guidance on the CDC website if they have questions. Let individuals know what support the company can offer during this time. Plan to check in with the employee who tested positive and any employees or customers isolating due to close contact regularly to see how they are doing.
Be sure to notify the rest of the company by email or letter that an employee has tested positive for COVID-19. Remember to keep the employee’s identity protected and be transparent about your response. The communication should include what steps your company will be taking to protect the health of other employees. If you plan on having employees work from home for the next 14 days or closing the office, this information should be disclosed in the communication.
Disinfecting the Office
According to the Centers for Disease Control and Prevention, COVID-19 can remain on hard surfaces for up to 12 hours, creating a potential risk of transmission. Depending on the size of your organization, you may want to consider closing the office for a few days so that it can be thoroughly cleaned and disinfected. All surfaces that the infected employee may have touched should be disinfected, as well as other high-touch surfaces, which include countertops, cabinets, doorknobs, handles and chairs.
Evaluating Leave Policies
Employers need to evaluate what their next steps will be. For some, this may involve shutting down their office temporarily. For others, this may mean asking employees to work from home until further notice. Each business is unique and should make the best decision for their unique needs. Should your company decide to shut down, you will need to review your leave policies. Consider asking employees to use their sick leave or paid time off if you’re shutting down the office. You should also be aware of provisions included in the Families First Coronavirus Response Act (FFCRA), should you have employees who need to take leave due to a COVID-19 diagnosis or recommendation to quarantine by a healthcare provider. Employers should contact Helpside, with questions about how the FFCRA might apply in this case.
Due to the rapid spread of COVID-19, employers should be prepared to respond to an employee testing positive for the disease. By being prepared, employers can swiftly respond to the employee, notify the rest of their organization, and make plans for moving forward.
How can I complete Form I-9 for new employees working remotely?
The Department of Homeland Security (DHS) has offered guidance to employers for completing the identification verification section of the Form I-9 with employees now working remotely due to COVID-19.
If a new employee is working remotely. employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.
Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
More information can be found here: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance