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Jul29

Right of Way Agent Exemption

Is a right a way agent exempt or non-exempt? Duties include The Right-of-Way Agent applies fundamental knowledge of basic principles, theories, concepts and industry practices to plan and execute pipeline right-of-way acquisition from pre-acquisition through acquisition, construction and post-construction phases of a pipeline project(s). •Solves problems of limited scope and complexity following established policies and procedures for guidance related to right-of-way acquisition for pipeline construction projects. Work is accomplished under general direction and reviewed for results. •Researches, reviews, analyzes, and prepares land title certificates; identifies defects and outlines curative. •Negotiates the acquisition of right-of-way and other property interests as necessary to accommodate the construction, operation, and maintenance of company facilities. •Secures all civil permits required by regulatory agencies/entities for the construction and maintenance of company facilities. Assists in establishing a proposed route for the pipeline project(s), including trunk line projects, well connects, and custody delivery points. •Prepares the Landowner Line List from tax roll information and internal mapping system. •Reviews, prepares, analyzes, interprets all Land and Right-of-Way related agreements, easements, leases, permits & licenses and resolves encroachments, damage claims, landowner complaints and inquiries at a minimal cost to company. Obtains permission to survey from owners and tenants; identifies environmental issues for proposed routes; identification of necessary agency/entity permits and generation of plats, maps and data required to acquire Right-of-Way (ROW). •Assists in the preparation of condemnation files. •Documents right-of-way damages incurred during construction and recommends resolution of all right-of-way damages with contractor(s) and owners/tenants. •Serves as liaison between internal departments, developers, cities, counties ,etc.

The U.S. Department of Labor administers and enforces the Fair Labor Standards Act (FLSA) which establishes minimum wage, overtime pay, recordkeeping, and child labor standards. Under the FLSA employees are classified as non-exempt or exempt.

Non-exempt employees must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. Most employees are non-exempt.

Exempt employees are excluded from overtime pay provisions. To be exempt an employee must pass all three “tests”, salary level, salary basis, and duties, as outlined by the FLSA.

The salary level test: Employees who are paid less than $23,600 per year ($455 per week) are nonexempt.

The salary basis test: An exempt employee must receive a regular, predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced based on variations in the employee’s quantity or quality of work. Aside from a few exceptions, an employee must receive the full salary for any workweek during which the employee performs any work, regardless of the number of days or hours worked.

The duties test: An employee who meets the salary level and salary basis tests is exempt only if he/she also performs exempt job duties. The actual tasks of the job are to be evaluated, not the job title. There are three typical categories of exempt job duties titled executive, professional, and administrative.

Job duties are exempt “executive” job duties if the employee regularly supervises two or more other employees, has management as the primary duty of the position, and has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

“Professionally” exempt work is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Advanced degrees are the most common measure of this but are not absolutely necessary if an employee has attained a similar level of advanced education through other means and performs essentially the same kind of work as similar employees who do have advanced degrees.

“Administratively” exempt employees provide support to the operational or production employees and have a major impact on the overall business. An administratively exempt employee has the authority to create or interpret company policies, has responsibilities that directly relate to the overall business operation, has the decision making ability to make significant financial impacts, and has the authority to deviate from company policy without prior approval.

A classification for the Right of Way Agent cannot be determined based solely on the information provided. It’s important to review the requirements for classifying an employee and make the best determination. If determining a classification is unclear, it’s better to classify the agent as non-exempt.

July 29th, 2014, 9:03 PM |  Posted in: Labor Laws |
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Jul29

Meal Periods

We have a civil service employee who eats lunch at her desk and leaves one hour early every day. Her boss has given her permission to do this. This has caused a problem for other employees because they would like to do the same. Is this allowed? Should her time sheet indicate the time she’s leaving with a notation “no lunch?” P.S. to the person answering this question, “Are you a lawyer, if not, what is your job title?”

Federal law doesn’t require employers to provide meal periods to employees. However, many states have adopted legislation requiring meal periods of specified duration. Please feel free to re-post the question with the state listed. We’d be happy to research specific state requirements for you.

The federal Fair Labor Standards Act (FLSA), which applies to government agencies, establishes minimum wage, overtime, recordkeeping, and youth employment standards. Every covered employer is required to maintain records for each non-exempt employee, specifically time worked each day. Thus, the employee’s time sheet should accurately reflect her hours worked.

It’s best practice for employers to adopt a meal period and rest break policy to inform employees of company expectations and applicable state regulations. Employers must consider the impact of allowing employees to skip meal periods. Meal periods and rest breaks provide employees with time to relax away from job responsibilities. The time away is hoped to rejuvenate the employee enough so that he works more efficiently during the remainder of the workday. On the other hand, some employees prefer to work through their lunch for various reasons. Some may simply want to be able to leave work early while others work more efficiently without the interruption a meal period imposes. Employers should take in to account the nature of the job, workforce culture, and ability to provide the same benefit to all employees when adopting a meal period and rest break policy.

If the employer prefers employees to take a meal break, establish a clear policy stating such requirements and discipline employees who fail to follow the policy. Keep in mind that non-exempt employees must be paid for any time worked, even if the time not is not authorized. Thus, a non-exempt employee working through his lunch must be compensated for the time. However, he can still be disciplined for failure to follow company policy.

As requested, the person responding to your question is a certified Human Resources Professional.

July 29th, 2014, 9:01 PM |  Posted in: Human Resources Management, Labor Laws |
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Jul29

FMLA Dr’s RTW Note

Does the doctor’s note for an employee out on FMLA leave need to be completed within a certain amount of time prior to the employee returning to work? If a doctor’s note is written 2 weeks before the employee returns, it that too long of a time and can the employer request that the employee go back to the doctor for a more current RTW note?

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected, unpaid leave for a serious health condition. Under the FMLA, employers may require an employee to submit certification from a healthcare provider to support the employee’s need for FMLA leave. The employer must notify the employee each time a certification is required. The employer’s notice must be included in the written notice of FMLA rights and responsibilities given to the employee when leave is first requested.

As a condition of restoring an employee whose FMLA leave was due to the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all employees in similar job positions to obtain and present certification from the employee’s health care provider that the employee is able to return to work. The employer may request a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. The employer must provide notice of its requirement and whether the certification must address the employee’s ability to perform the essential functions of his or her job with the FMLA designation notice. The employee has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial certification process.

There is not a specified time frame from the date of the certification from the employee’s healthcare provider to the employee’s return to work date. However, the time frame must be reasonable and practical judgment must be used.

In general, a fitness-for-duty certification may not be required for each absence taken in an intermittent or reduced leave schedule. However, if the employer has a reasonable belief that the employee’s return to work presents a significant risk of harm to the employee or to others, the employer may require a fitness-for-duty certification up to once every 30 days.

As long as the employer has provided the required notice regarding any fitness-for-duty certification requirement, the employee’s return to work may be delayed until the fitness-for-duty certification is provided. An employer may contact an employee’s health care provider to clarify or authenticate a fitness-for-duty certification, but cannot delay the employee’s return to work while making that contact. An employer may not require second or third opinions for a fitness-for-duty certification. The employee is responsible for paying any cost of obtaining the fitness-for-duty certification. If state or local law or collective bargaining agreement governs an employee’s return to work, those provisions must be applied.

July 29th, 2014, 7:41 PM |  Posted in: Human Resources Management, Labor Laws |
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Jul29

Exempt Part Time Vacation

We have a part time (20 hrs wk) exempt employee. Are we required to give them the same Vacation and Sick pay that we give full time exempt employees?

Paid time off benefits such as sick, personal, vacation, and holidays are not federally mandated for exempt or non-exempt employees. Some states require such benefits or have legislation concerning the administration of them. Assuming your state doesn’t require employers to offer any PTO then it’s up to the employer to establish a policy or practice for PTO. Keep in mind, some states may not require PTO but they will mandate employers to follow their established policies or practices.

Eligibility for PTO may differ amongst employees for employment based classifications such as full time or part time, exempt or non-exempt, length of service, or job group. Most importantly, the criteria must be nondiscriminatory. If an employer chooses to offer PTO to a select group of employees, the employer must consider if the criteria creates an adverse impact on protected groups or unintentional discrimination.

July 29th, 2014, 7:17 PM |  Posted in: Benefits |
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Jul29

Employee Family Member and Hippa Laws

There is a employee here who had grand child born with medical problems, and called in and told the manager about it and needed some time off. The employee also put out some information on Facebook about this. She is now saying that work violated her grand childs Hippa rights. Any justification on this?

The Health Insurance Portability and Accountability Act (HIPAA) sets a national standard for the privacy of health information, which applies to how medical records are used and disclosed. The act protects from unauthorized disclosure any personally-identifiable health information pertaining to consumers of health care services. Generally, health care providers, health plans, and health clearinghouses are considered covered entities under the act, not employers. However, employers are affected by privacy rules.

Although a manager who discloses an employee’s medical condition or the medical condition of an employee’s family member is acting inappropriately and possibly in a discriminatory manner, the manager’s actions are most likely not a HIPAA violation. If the manager was the benefits plan administrator and provided information obtained through the employer’s sponsored health plan, a violation may have occurred. Even so, it would need to be ascertained if the manager disclosed the child’s condition or the employee herself.

A conversation should be had with the manager explaining the obligations of an employer and its management team to maintain the privacy of its employees’ medical information. An employee providing medical information either about herself or her family, especially for the purpose of enacting state or federal protected leave rights, has every right to expect the information to remain as confidential as possible. Of course, certain HR/benefits staff or administrators may need access to the information. Unless you have reason to believe the manager did, in fact, disclose information, there is no need pursue disciplinary action. However, a simple conversation reminding the manager of his expectations is acceptable.

July 29th, 2014, 7:07 PM |  Posted in: Human Resources Management |
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