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May29

HIPAA Violation

Is it a violation of HIPAA for an employer to put on posted schedule for all employees to see com (for comp) this is letting all employees know this person is off injured?

The Health Insurance Portability and Accountability Act (HIPAA) mandates that covered entities comply with requirements to protect the privacy and security of health information. A covered entity is an individual or organization that uses and/or exchanges confidential medical data. 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).

It’s reasonable for an employer to communicate an employee’s absence to other workers. Such notification may be needed to ensure workload coverage. Stating that the employee is out due to an injury or illness alone is not a violation of HIPAA. However, assuming the employer is a covered entity, if the notice includes the employee’s specific medical condition, a violation may have occurred.
For example, stating that Jane is on leave due to a personal injury is acceptable. However, stating that Jane is on leave for cancer treatment is not.

Again, it’s perfectly reasonable for an employer to communicate an employee’s absence. It’s advisable to simply state that an employee is currently on leave or absent and leave the details out.

May 29th, 2015, 8:22 PM |  Posted in: Labor Laws |
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May29

Pay for Holiday

If an employee still in the probationary period, Memorial Day, do we have to pay for that day? Thank you, Trudy

Hi Trudy,

The federal Fair Labor Standards Act (FLSA) establishes compensation guidelines for employees. Under the FLSA, employees are classified as either non-exempt or exempt. Non-exempt means that an employee is subject to the overtime and minimum wage requirements prescribed by the FLSA. Conversely, exempt employees are excluded from such provisions.

Non-exempt employees are paid per hour for each and every hour worked. Exempt employees receive a fixed, predetermined salary per workweek.

The FLSA does not require payment for time not worked such as holidays. So, a non-exempt employee who is not yet eligible for holiday pay need not be paid for the holiday.

On the other hand, exempt employees generally must receive their full, predetermined salary for any workweek during which work is performed. There are limited permissible deductions from an exempt employee’s salary including:

• When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
• For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
• To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
• For penalties imposed in good faith for infractions of safety rules of major significance;
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
• In the employee’s initial or terminal week of employment if the employee does not work the full week, or
• For unpaid leave taken by the employee under the federal Family and Medical Leave Act.

Additionally, deductions from an exempt employee’s salary for absences occasioned by the employer violate the salary basis test for exempt status. An employer closing for a holiday would be an absence “occasioned by the employer.”

Thus, regardless of the employee’s ineligibility to receive holiday pay, an exempt employee’s salary cannot be reduced if the employee was ready, willing, and able to work, but work was not available such as the company being closed for a holiday.

May 29th, 2015, 7:11 PM |  Posted in: Compensation, Labor Laws |
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May26

Exempt Employee Working on Special Projects

I have an exempt employee who has asked to be given special projects to work on during his nights and weekends, and earn extra money for the projects either by hourly rate or by project. what labor laws do we as an employer need to be aware of in replying to this employee?

Under the federal Fair Labor Standards Act (FLSA), to be exempt, an employee must pass all three “tests” as prescribed by the FLSA; salary level, salary basis, and duties. The salary level and basis tests require that exempt employees receive at least $23,600 per year ($455 per week) 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.

An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement if the employment arrangement also includes a guarantee of at least $455 on a salary basis. Such additional compensation may be paid on any basis including flat sum, bonus payment, straight-time hourly amount, time and one-half or paid time off.

So, you can pay the exempt employee additional compensation for special projects without jeopardizing his exempt status.

It’s worth noting that under the FLSA, a worker can only have one classification, exempt or non-exempt. The classification is based on the worker’s primary job duties but when a worker has two jobs within the same company the primary duties are actually a combination of both jobs. Since it appears the employee in question will only be working a few extra hours on special assignments, this is not much of an issue. However, if the employee starts to work more hours on a regular basis it must be determined if the combined responsibilities of the two jobs would still satisfy the requisites for the exempt classification. If not, the employee would need to be re-classified as non-exempt for both positions and subject to overtime regulations per the FLSA.

Remember to clearly document the reasoning for the additional compensation.

May 26th, 2015, 8:11 PM |  Posted in: Compensation |
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May23

Exempt Employee Working Second Job

Can an exempt employee temporarily perform a part-time job for the same employer paid at a lesser rate of pay?

Allowing an exempt employee to work a second job within the same company is permissible; however, certain precautions must be taken to ensure provisions of the federal Fair Labor Standards Act (FLSA) are not violated.

A common misunderstanding with allowing an employee to work a second job is that the employee will automatically retain his FLSA classification. This is not always true.

To be exempt, an employee must pass all three “tests” as prescribed by the FLSA; salary level, salary basis, and duties. The salary level and basis tests require that exempt employees receive at least $23,600 per year ($455 per week) 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.

Under the FLSA, a worker can only have one classification, exempt or non-exempt. The classification is based on the worker’s primary job duties. But when a worker has two jobs within the same company the primary duties are actually a combination of both jobs.

Employees who normally spend more than 50% of their time performing exempt work will satisfy the primary duty requirement. It must be determined if the combined responsibilities of the two jobs would still permit the exempt classification or if reclassification is necessary.

If the combined responsibilities still warrant exempt classification, providing additional compensation to the employee for the second job is permissible without losing the exempt status or violating the salary basis requirement for the employee’s primary job. This additional compensation can be paid on any basis, including a flat sum, bonus payment, straight-time hourly amount, time and one-half, or any other basis, including paid time-off. The amount can be at a lower rate than the employee’s primary job.

If it’s determined the combined responsibilities don’t satisfy exempt status requirements, the employee must be re-classified as non-exempt for both positions and subject to overtime regulations per the FLSA. Overtime rates must be paid for all hours worked over 40 in any given workweek. The overtime rate would be either the weighted average of the two wages or the rate of the job in which the overtime was earned. Keep in mind that some states have daily overtime laws as well as set requirements for calculating overtime rates for employees with two jobs.

It’s important to clearly document whichever decision is made. HTH!

May 23rd, 2015, 8:32 PM |  Posted in: Compensation, Labor Laws |
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May23

Laying Off Employee while in Hospital

Our employee went in for a two day surgery and went into full blown de-tox. It’s been 8 days and still knocked out and on ventilator. Can this employee be laid off at this time? Most likely she will go on short term disability but we haven’t received forms yet. She was paid her sick time and has one day left with 2 weeks vacation. Does this have to be paid?

The federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave for specified medical reasons.

An eligible employee is one who has worked for a covered employer for at least 12 months, has at least 1,250 hours of service for the covered employer during the 12-month period preceding the leave, and works at a location where the covered employer has at least 50 employees within a 75 mile radius.

A covered employer is a private sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year; or a public agency, including a local, state, or Federal government agency, or a public or private elementary or secondary school regardless of the number of employees it employs.

If the employee is covered under the FMLA, she must be able to use her full leave entitlement. An employer may require an employee to use any paid time off accruals while on leave; however, once such accruals are exhausted, there is no requirement for the leave to be paid.

Though only a few states have adopted their own leave laws, it’s important to know if your state has such laws and your obligations under them.

Even once the employee exhausts her FMLA leave entitlement or if she is not covered under the FMLA, the federal Americans with Disabilities Act (ADA) must be considered.

Private employers, state or local governments, labor unions, and employment agencies with at least fifteen employees must comply with the ADA.

Under the ADA, an individual is considered to have a disability if he 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. It’s impossible to provide an opinion whether the employee’s medical condition is covered under the ADA without knowing more information. It’s best to consider the information you have or, if need be, request a medical certification to ascertain the employee’s eligibility under the ADA.

Though the ADA doesn’t explicitly entitle employees to time away from work, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. Time off from work may be considered a reasonable accommodation.

An employer isn’t required to provide a reasonable accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources.

So, assuming the employee’s medical condition qualifies as a protected disability under the ADA, consider offering her an extended leave. Inform the employee (or her representative) that you cannot hold her position indefinitely. Set a timeframe for the leave including a specific date on which the employee must return to work or be terminated.

If neither the FMLA nor the ADA applies in this situation, past practice should be considered. Have you provided short term leaves to other employees with medical conditions? If so, it may be in your best interest to offer this employee a similar benefit. Doing so reduces the risk of a wrongful termination claim.

Whether or not an employee’s vacation time must be paid out at separation depends on state law. Some states have adopted legislation that considers accrued vacation time to be earned wages; thus, requiring the payout of such time.

May 23rd, 2015, 8:24 PM |  Posted in: Termination |
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