Columbia EDP Blog

News From Columbia EDP

Posted: 2019-10-30

The Employment Laws Every Growing Organization Should Know About

Periods of growth are particularly exciting for small and midsize businesses, but they also bring new HR challenges. Along with adding employees—which may change the feel of your culture as well as your floorplan—your organization may become subject to federal and state laws that take effect once you have a certain number of employees.

Most employment laws apply to organizations based on the number of people they employ, so as you grow, it’s vital to keep up-to-speed on any laws that newly apply or will soon apply to your organization.
Federal Laws
To understand the scope of many of the federal laws discussed below, employers need to know the definition of discrimination. In the context of employment law, discrimination means taking any adverse (or negative) action against an employee. Adverse action includes but isn’t limited to the following:

Posted: 2019-10-25

Can you tell an employee to "grow up"?

We have an employee who generally performs well, but at times behaves immaturely. When she gets upset, she slams things and stomps around the office. She also often says “That’s not my job” when asked to help with something.

She’s younger and this is her first job. Is there a best way to address this behavior without it sounding personal? I know I can’t tell her to “grow up,” but I also can’t allow this immature behavior to continue.

Posted: 2019-10-21

Does presenting a termination as a layoff reduce the risk of an unlawful termination claim? We have a new manager who’s not performing well that we want to let go.

No. In fact, it could create more risk. If the terminated manager saw that you were hiring again for the position you were supposedly eliminating, they’d likely start thinking of reasons you would lie to them about why they were terminated. Since poor performance would be a perfectly legal reason for a termination—and one which you could have shared—they will likely start thinking of potential illegal reasons for their termination. While an investigation or litigation might not go far, any time spent dealing with an angry former employee (if it could have been avoided by telling the truth), is time wasted.

In this case, we would recommend putting the manager on a performance improvement plan and documenting their progress (or lack thereof). If the employee’s performance doesn’t improve within the time frame set by the performance improvement plan, you’re on much safer ground to terminate their employment. If their performance does improve, then you’ve got a winning situation; you have someone performing well in the role and you avoid the risks of termination as well as the added costs of finding a replacement

Posted: 2019-10-18

Ready to Replace an Old-Fashioned Punch Card System?

Are you still using a traditional card punch time clock? Researching the best way to upgrade? This post is for you.

Types of Physical Time Clocks

First, let’s discuss your options. There are a variety of time clocks for measuring employee time.

Posted: 2019-10-16

DOL Releases Final Overtime Rule, Effective Jan 1, 2020

The Department of Labor has announced the new minimum salary for certain exempt white-collar employees. The final rule is very close to the proposed rule we reported on in March. The new minimums will take effect January 1, 2020.

Exempt Executive, Administrative, Professional and Computer Employees (EAP)
Salaried exempt EAP employees must be paid at least $684 per week on a salary basis (an increase from the current minimum of $455 per week). This is the equivalent of $35,568 per year.

Up to 10% of this minimum may come from non-discretionary bonuses, incentive payments, and commissions (collectively, “incentive pay”), so long as these payments are received on at least an annual basis. If an employee does not earn enough incentive pay to meet the minimum by the end of the year, the employer has two options: pay the difference with a “catch-up” payment within one pay period after the end of the 52-week year or retroactively remove the exemption and pay the employee for any overtime worked during that same year.

Teachers, practicing lawyers, practicing doctors, and outside salespeople are exempt from these minimums under federal law, though may be subject to state minimums.

Exempt Highly Compensated Employees (HCE)
The HCE exemption is intended for employees who don’t quite qualify for the EAP exemptions due to their job duties, but who happen to be paid extremely well. This exemption is used much less commonly than the others and most exempt employees will fall under the EAP exemptions.

Employees classified as exempt under the HCE exemption must make at least $107,432 per year. Of that amount, at least $684 per week must be paid on a salary or fee basis, with no reduction for future incentive pay. The remainder of their income, however—nearly 67% if they make $107,432—may come from incentive pay. If the employee does not earn enough in incentive pay to meet the minimum by the end of the year, the employer has the same two options as with EAP employees. They can make a catch-up payment (in this case within one month) or retroactively remove the exemption and pay the employee for any overtime worked during the previous year.

State Law
California, New York, and soon Washington have laws in place that make the minimum salary for exempt employees higher than the new federal thresholds. Since employers must follow the law that is most beneficial to employees, the new federal minimums would not affect employers in these states.

What Now?
Employers will need to evaluate anyone who they currently classify as exempt from overtime and pay less than $684 per week or $35,568 per year. Once these employees are identified, employers will need to choose between giving them a raise to meet the new minimum to maintain the exemption or reclassifying them as a non-exempt and paying overtime.

Posted: 2019-10-14

We’ve heard from some staff that one of our employees suffers from chronic back pain. We’re concerned that this employee’s job duties may be aggravating their condition. Can we ask them about this?

No. Unless you have objective evidence such as direct visual observation that the back pain is interfering with the employee’s work, you should leave it alone. If at some point in the future it becomes apparent that the employee is having issues while working (for example, unable to lift as usual, holding their back, groaning, etc.), then you should definitely speak with them to understand if there may be some restrictions that would affect their ability to continue doing the essential functions of their job. If so, you should discuss whether there is a reasonable accommodation you can offer to make that possible. You may be able to request documentation from the employee’s health care provider concerning applicable restrictions and duration to help with this process and determination.

So, unless a disability becomes apparent through observation, or is reported to you by the employee themselves, their family member, or a doctor, you should not assume one exists or that it would affect their ability to perform their job. Doing so can lead to discrimination claims as well as poor morale and hurt feelings.

Posted: 2019-10-11

Can an employee submit a new W-4 at any time?

Yes, an employee may submit a new W-4 anytime they have changes. Often, they’ll submit a new form when they know they’ll be changing exemptions, adjustments, deductions, or credits on their return.

For example, an employee may want to increase their withholding by decreasing the number of dependents they claim. Or they might want to add dependents to decrease the amount withheld. Life events such as marriage, divorce, and childbirth are common reasons to update a W-4, but employees can generally change their withholding allowances at any time and for any reason.

According to the IRS, employees who are making changes due to a divorce (if they’ve been claiming married status) or for any event that decreases the number of withholding allowances they can claim should submit a new W-4 within 10 days.

After a W-4 is received, the new withholding amount should be put into effect no later than the start of the first payroll period ending on or after the 30th day from when the employee submitted the replacement Form W-4. 

Posted: 2019-10-09

Enforcing Rest and Meal Periods in Hectic Work Environments

Restaurants, coffee shops, hair salons, call centers, and customer focused offices often have “just enough” staffing on hand at any given time. Limited staffing makes it challenging to relieve an employee for a rest period or meal break.  An employee who leaves the work area, even for a small amount of time often causes stress and increased workloads on colleagues. This factor, though understandable, does not release an employer from providing mandatory rest periods and breaks to its employees.   

 Breaks and meal periods should, therefore, be scheduled in accordance with state law requirements; for example, some states require that employees receive a paid ten minute break for every four hour segment of work or an unpaid meal period of at least thirty minutes in duration after an employee works five consecutive hours. Other states require that employees under the age of 18 are provided with paid rest breaks or meal periods, but the laws do not apply to an employee who is over the age of 18. 

Posted: 2019-10-04

Can we ask an applicant why they are leaving their current job?

Yes. While it’s fine to ask this question during the interview, we recommend you collect this information ahead of time by asking about it on an employment application. In the section where the applicant lists their previous employment experience, you can ask for the reason they left each job. Trends you notice may be cause for follow-up questions during the interview or a reason not to schedule an interview at all.

If you ask about previous or current employment during the interview, be mindful of the direction the response goes. As with any interview question, you should redirect the candidate if they start to share sensitive information. For example, if a candidate says they left past employment due to medical reasons, don’t ask for details about their condition. Instead, you could ask whether they provided notice of their need to resign and whether they left on good terms.

Posted: 2019-10-02

Do you recommend screening the social media accounts of job candidates?  I've heard some companies do that.

Some companies choose to review the social media accounts of job candidates, usually with the hope of spotting any red flags or assessing “cultural fit,” but we recommend against doing so.

First, it creates extra risk. You could be exposed to information about the candidate’s protected classes, such as their race, age, or religion. If your ultimate hiring decision was challenged, you would need to prove that those characteristics were not a factor in your decision.

Second, your application and interview process should provide you with sufficient information to determine whether a candidate is qualified and would contribute to your culture. You shouldn’t need to get into the private lives of candidates to determine whether they’re the right person for the job.