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Feb08

Exploring PTO Benefits

I am a human resource intern who has been assigned the project of gathering information of different companies PTO/sick benefit packages. I have received some feedback from companies, but I was wondering if anyone had ideas on the best way to get this information? Or if you think companies are going to be willing to share their policies with me? Thanks!

One way is to request the information through the Society for Human Resource Management (SHRM). If you’re a member you have access to their recent surveys or you can even conduct a brief one of your own through their community forums. Unfortunately, the information is not geographically or industry specific all the time. So, you could potentially find out a lot of information but you may not know if it’s coming from cities/suburbs, corporate/non-profit, or small/large employers. It makes a difference.

You should also consider reaching out to your local SHRM chapter or similar HR/Business society. Doing so is a great way to connect with HR professionals in your area and will give you a good insight in to the benefit packages of local, similar employers.

Otherwise, you can simply cold call employers. Most companies are willing to share the basics of their benefits packages. Just make sure that you contact HR directly, disclose that you’re in HR and you’re gathering information on benefits provided by local companies or industries. You may even consider sharing the information you collect with the companies that you’re reaching out to. It may make them more willing to give up the information you need. Just keep in mind this will make some extra work for you.

Good Luck!

February 8th, 2016, 8:46 PM |  Posted in: Human Resources Management |
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Feb08

Maternity Leave

We have 17 employees. Are we required to leave an employee’s position open for her return after maternity leave?

With less than 50 employees neither federal nor most, if not all, state maternity leave laws apply. (Feel free to post a comment with your state and we can research any applicable laws.)

But, the federal Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA) must be considered. Both laws cover employers with 15 or more employees.

The ADA requires employers to provide reasonable accommodations to employees with a covered disability. Pregnancy or childbirth itself is not a disability; however, certain conditions such as preeclampsia or post partum depression are often considered a covered disability under the ADA. Thus, employers must communicate with employees to determine the presence of a disability under the ADA and consider appropriate reasonable accommodations. Reasonable accommodations may include a short term leave of absence.

Remember, not every employee who is pregnant or has recently given birth is covered under the ADA just those who have covered disabilities.

The PDA prohibits discrimination based on pregnancy or childbirth when it comes to any aspect of employment. Basically, if a woman is temporarily unable to perform her job due to pregnancy or childbirth, the employer must treat her in the same way as it treats any other temporarily disabled employee.

So, if you’ve allowed employees to take short term leaves of absence (either paid or unpaid) to recover from surgery, for example, then the same benefit must be awarded to a pregnant employee.

Aside from the aforementioned laws, if you’ve promised the employee her position upon return from maternity leave (even if it was an implied promise) then it’s in your best interest to adhere to your own terms. Otherwise, there is an increased risk of a wrongful termination claim.

February 8th, 2016, 8:32 PM |  Posted in: Benefits, Labor Laws |
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Feb08

Dealing with an Employee

I need guidance on handling a certain employee. The employee has a slight mental delay and he can be quite emotional. He’s a great guy, very nice, and has been a family friend for quite some time. My problem is that he will barge into my office (opened door however) and come around to the side of my desk which can have personal, private information on/open. Recently I had another coworker in my office and we were changing his taxes and the employee in question came around and had the ability to see the other employee’s information I was editing on the website. I don’t think this employee saw anything, but I’m wanting everybody’s info to be kept private nonetheless. I’d love some direction on how I can inform this guy, and everybody else, that sometimes I work on private personal matters and that I may need time to put away stuff before they approach my desk. Thank you!

It can be difficult having an open door policy while maintaining boundaries and privacy.

Adopting an open door approach to management doesn’t mean you literally need to have your door open all the time for employees to walk in/out at their leisure. Be accessible to your employees by encouraging them to schedule meetings with you and schedule regular meetings with key employees or employees who may need/want more of your attention (like the individual you mention). Close your door during meetings. Lock it if you must. Setting boundaries is key to avoiding privacy mishaps and managing your own time.

You don’t want to get to the point where you’re door is always closed. The point of open door management is to open the lines of communication and foster closer working relationships. You may consider setting time aside each day where your door remains open for employees to drop in. But, encourage employees with confidential matters to schedule an appointment.

Also, make yourself accessible to staff by walking by their offices/cubicles or any space they frequently visit like a break room. Take the time to talk to employees even if it’s just to say hi.

Remember to discuss the changes with your employees, maybe at your next staff meeting. Let them know that you will continue to be accessible to them for anything they need, updating their paperwork, coaching, questions etc… Explain that in order to better handle confidential business and employee matters your door will be closed on occasion. Reiterate your accessibility by encouraging them to schedule meetings with you or dropping by during your “office hours”.

Most of the time employees will understand and respect the boundaries you establish. But, occasionally there is an employee like the one you have. In this case, you can hope he gets the hint from the staff meeting. More likely, you’ll need to talk to him in person, one on one. If you feel he may get anxious in your office with the door closed then use a conference room. Start the conversation with positive feedback about his work, his relationships with co-workers, and his relationship with you. The point is to make him feel comfortable. Then discuss how as a manager (or whatever your role is), you often have confidential information in your office/on your desk. State that part of your job is to keep this information private and in order to do your job you need him to knock before he enters your office and sit/stand in front of your desk. Ask him if he can do that for you and, assuming he says yes, thank him for helping you. If he barges in again, gently remind him of your agreement.

HTH!

February 8th, 2016, 7:58 PM |  Posted in: Workplace Management |
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Feb08

Non Exempt vs Exempt

Sir/ Ma’am, The question I have is this: In the state of Massachusetts I have been told that if an exempt employee, in this case a supervisor, performs a certain percent of a job of a Salaried Non Exempt employee then the company is obligated by law to pay the Exempt employee the same rate as a Salaried Non Exempt employee. Can you validate this? If so then can you answer the question as to what percentile of duties performed can they legally perform? I have been told it is somewhere between 20-25%.

We weren’t able to locate any law in Massachusetts requiring an employer to pay an exempt employee comparable compensation as a non-exempt employee doing similar work.

Massachusetts has basic wage and hour laws including minimum wage, overtime and tips regulations.

Employers in Massachusetts are subject to the federal Fair Labor Standards Act (FLSA). The FLSA establishes compensation regulations affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, employees are either non-exempt or exempt.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements. Conversely, exempt employees receive a fixed predetermined salary and are excluded from overtime pay provisions.

Hourly and salary paid are compensation terms. Though uncommon, a non-exempt employee can be paid a salary (as in your situation).

To be exempt, an employee must pass all three “tests”, salary level, salary basis, and duties, as outlined by the FLSA.

The salary level and basis tests require that exempt employees receive at least $455 per week (this is expected to increase this year) as a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. Exempt job duties are generally categorized as executive, professional or administrative. Feel free to review our previous posts on exempt job duties for more details.

It’s the employer’s responsibility to determine the classification of employees. So, if an exempt employee meets the criteria for exempt status but starts performing non-exempt duties, then the employer must review all of the employee’s duties to ensure he still meets the exempt criteria.

There is an industry thinking that an exempt employee who otherwise meets the exempt criteria can perform about 25% of non-exempt duties without jeopardizing the exempt status. But, it’s important to mention that the FLSA doesn’t provide this or any percentage when determining whether an employee passes the duties test for exemption. Employers must review all of an employee’s job duties as they relate to the duties test under the FLSA.

If it’s determined the employee no longer meets the exempt criteria, then his classification must be changed. If an employee’s classification is ever questionable, it’s always safer to classify him as non-exempt.

HTH!

February 8th, 2016, 2:46 PM |  Posted in: Compensation |
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Feb08

HIPAA Violation

A manager in our company sent an email to supervisors and employees names of other employees who have not received flu vaccinations. The email clearly stated the names of each individual employee who was not vaccinated and for what. Is that a HIPAA violation?

The Health Insurance Portability and Accountability Act (HIPAA) mandates that covered entities comply with requirements to protect the privacy and security of health information. Covered entities are health care clearinghouses, certain health care providers, and health plans. Common covered entities include doctors, clinics, company health plans and government programs that pay for healthcare.

The HIPAA Privacy Rule protects “individually identifiable health information”, including data that relates to:

• an individual’s past, present or future physical or mental health or condition,
• the provision of health care to an individual, or
• the past, present, or future payment for the provision of health care to an individual;

and data that identifies an individual or for which there is a reasonable basis to believe it can be used to identify an individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).

The Privacy Rule doesn’t regulate every employer, only those considered covered entities. An employer is not considered a covered entity just by being any employer or by offering group healthcare coverage. The insurance provider is a covered entity. But, even if the manager received the vaccination record of each employee from the insurance provider, the insurance provider would be in violation of HIPAA, not the employer.

Let’s assume the employer, specifically the manager in question, is a covered entity under HIPAA regulations. Then the question is whether disclosing the names of employees who have not had a flu vaccination violates the Privacy Rule.

As long as an individual’s medical information, even the need for a future medical procedure such as an immunization, is disclosed without the appropriate authorization, then a violation has occurred. However, HIPAA permits the disclosure of protected health information for public health purposes.

So, yes, a HIPAA violation occurred but depending upon the reason for disclosing the information, doing so may be permitted.

Still, there are less public ways of sharing such information. Employees can and should be contacted individually and confidentiality to discuss the situation.

Most employers would discipline the manager. The level of disciplinary action depends upon the manager’s position in the company and his direct knowledge of HIPAA rules. For example, a nursing manager should know member and her disclosing employees’ medical information would be considered a blatant disregard of the law. However, a grounds keeping manager usually would be given some leeway. It’s completely up to the company to manage the disclosure and disciplinary process.

February 8th, 2016, 2:15 PM |  Posted in: Workplace Health & Safety |
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