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Healthcare Coverage

If a non-exempt employee works one day of the month then quits does their health care coverage continue until the end of the month?

Whether healthcare coverage terminates on the employee’s last day of work or on the last day of the month completely depends on the terms set forth in the employer’s insurance policy. It’s common practice to keep employees’ benefits active until the end of the month.

Employers are encouraged to clearly state in the employee handbook the time period for which benefits will remain active once an employee separates from the company.

It’s also important for employers to be aware of their responsibility to notify covered employees of their eligibility for continued coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). Qualified beneficiaries must receive a COBRA election notice within 14 days after notice of a qualifying event (i.e. separation of employment).

The election notice should include:
• The name of the plan and the name, address, and telephone number of the plan’s COBRA administrator;
• Identification of the qualifying event;
• Identification of the qualified beneficiaries (by name or by status);
• An explanation of the qualified beneficiaries’ right to elect continuation coverage;
• The date coverage will terminate (or has terminated) if continuation coverage is not elected;
• How to elect continuation coverage;
• What will happen if continuation coverage isn’t elected or is waived;
• What continuation coverage is available, for how long, and (if it is for less than 36 months), how it can be extended for disability or second qualifying events;
• How continuation coverage might terminate early;
• Premium payment requirements, including due dates and grace periods;
• A statement of the importance of keeping the plan administrator informed of the addresses of qualified beneficiaries; and
• A statement that the election notice does not fully describe COBRA or the plan and that more information is available from the plan administrator and in the SPD.

November 29th, 2015, 10:22 PM |  Posted in: Benefits |
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40 Hour Guarantee

We are looking to implement a 40 hour guaranteed minimum for our employees, due to our unstable schedule. Can we establish criteria to qualify for the guarantee? Such as “can’t be on worker’s compensation, etc..?

Imposing a minimum number of hours to be worked by employees is permissible but what exactly do you mean by a “guarantee”?

Let’s assume by “guarantee” you mean that only employees who work 40 hours minimum per week are entitled to certain benefits. Employers are within their rights to impose such requirements. However, cancelling an employee’s benefits because they’re out sick for a day or on worker’s comp or on FMLA leave may be unlawful.

Remember, employees who are on worker’s comp have suffered from a workplace accident or illness that prevents them from working. In many cases, the employee may also be considered to have a disability as defined by federal law. Thus, any negative employment action taken against the employee due to his condition or disability may be construed as discriminatory.

Feel free to post a comment on this question providing more specifics of the situation.


Form I-9 Self-Audit

I was recently hired as HR for my company. I informed them that we need to do a self-audit of the I-9s to insure they are in legal standing and correct any mistakes. I was told to just back date them. I informed them that no, we need to just correct them. I was then asked to just print new ones off for all the employees with the right dates and make new ones. I informed them that was dishonest and illegal. I was told it was not a big deal. What should I do? I am constantly telling them that what they want me to do is either illegal or dishonest. I want to protect myself.

Conducting an I-9 self-audit is an arduous task. Even with the best intentions, incorrectly altering or destroying an I-9 can result in significant consequences including hefty fines.

Tell your employer that the U.S. Citizenship and Immigration Services (USCIS) requires I-9s to be completed and edited in a certain manner. Failure to properly edit the forms and, even worse, throwing them away is a big deal and can cost the employer thousands and thousands of dollars.

Why is your employer hesitant to correct the forms the right way? Are they concerned it will take you too much time or do you suspect they’re engaging in fraudulent activity?

The I-9 is an important tool used to ensure employers are complying with lawful hiring practices. Incorrectly altering or destroying it is unlawful. Thus, it’s important to be stern that you will not partake in unlawful activity. Assuming your employer is not trying to cover up illegal hiring practices, try to determine why they’re resisting doing a proper audit. Once you determine the reason, address their concerns and prove your case.

In most cases, the employer is simply just not aware of the proper procedures. Consider showing them the requirements in writing as described by the USCIS, Further, show them the penalties for violations, Illustrating the requirements and penalties in writing directly from the federal government should send a clear message that a proper self-audit is a must.

Hopefully, for both yours and their sake, you can convince them to conduct a proper self-audit. If so, the Society for Human Resources (SHRM) provides a helpful audit checklist, Best of Luck.

November 29th, 2015, 9:56 PM |  Posted in: Human Resources Management, Labor Laws |
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Timekeeping in Maine

In the state of Maine, is it required for an hourly employee to punch in and out from lunch break if the leave the premises ? If an exempt employee is not, why not? How can I properly explain this to the hourly folks so they understand the difference.

There is no federal law requiring employers to provide meal periods or rest breaks to employees. However, some states have adopted such laws including Maine.

Per the Maine Department of Labor: Employers in Maine must give employees the opportunity to take an unpaid rest break of 30 consecutive minutes after 6 hours worked if 3 or more people are on duty. An employee and employer may negotiate for more or less breaks, but both must agree (this should be put in writing). No coffee, bathroom, or smoking breaks are required.

So, the law doesn’t require the break to be paid. Thus, non-exempt or hourly paid employees would need to punch out for that time. Exempt employees could also be required to punch out for the break time; however, they’re salary cannot be reduced.

The federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards 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 prescribed by the FLSA. Non-exempt employees need not be paid for time not actually worked, such as a 30 minute meal period/break. Just remember, short breaks typically lasting less than 20 minutes must be compensated.

Employers are obligated under the FLSA to maintain specific records for non-exempt employees including the total number of hours worked each day and each workweek. Thus, an employer should require non-exempt employees to clock in/out to accurately record compensable hours worked.

Conversely, exempt employees receive a fixed predetermined salary for each workweek during which work is performed regardless of the quantity or quality of work performed. Deductions from an exempt employee’s salary are only permitted in limited circumstances. Rest breaks or meal periods of any duration is not a permissible deduction. Thus, employers typically don’t require exempt employees to punch in/out, especially for meal periods, since the time is covered by the employee’s salary.

However, employers are permitted to record and track exempt employees’ hours worked. So, an employer may require an exempt employee to punch out for a lunch break but the employee’s salary cannot be reduced.

Basically, inform your non-exempt staff that you’re required by federal law to accurately track each and every hour they work. Thus, when they take a 30 minute lunch break they must clock out since they’re not working and not getting paid for the time. Then explain that there is no such mandate for exempt employees; thus, they don’t have to clock out for their lunch break.

November 29th, 2015, 9:22 PM |  Posted in: Compensation, Labor Laws |
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Unable to perform some job duties

I have an employee who is deaf and recently legally blind. We had the Center for the Blind come in and help make accommodations to help her do her job duties. Some of the tools we purchased and some they supplied. Her job is computer/data entries, reviewing invoices, ordering supplies and answering phones. I noticed that she is not using most of the tools that were given to her and still makes mistakes because of it. I think her eyesight has gotten worse over the past 6 months but she has not asked for any more tools to help do her job. Can we ask for her to go out on disability? The company pays for short term disability for all employees.

Requesting or forcing an employee to take a personal leave to manage their medical condition is usually not advised unless the employee poses a safety risk to himself or others. Doing so increases the risk of discrimination claim against the employer especially if the primary reason for the request is due to the employee’s disability or medical condition.

The federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense. Employers with 15 or more employees are covered under the ADA.

The ADA requires employers to utilize an interactive process to determine the appropriate reasonable accommodations that will an enable an employee with a disability to perform the essential functions of his job.

It sounds like you’ve taken steps to provide reasonable accommodations for the employee to perform her job duties. But, was the employee involved in the process of determining what accommodations were provided? Yes, she was provided with tools but was she actually involved in the decision as to which tools were provided to her?

It’s important to provide reasonable accommodations to the employee but it’s equally important to engage the employee in the decision making process as to which accommodations will best allow her to perform her job functions. By taking a good faith role in the interactive process the employer is less likely to be held liable if the employee refuses to participate in the process or fails to use the accommodations provided.

Also, you state that even though you believe her eyesight is getting worse, she hasn’t asked for more assistance to perform her work duties. Remember, employers have an obligation to be proactive in assessing the need for reasonable accommodations under the ADA. Thus, if the employee’s performance is concerning, you must address the performance issues and, in doing so, discuss the need for further accommodations.

Again, involving the employee in the process of determining reasonable accommodations significantly reduces the risk of a discrimination claim or violation of the ADA. Remember to document all communications regarding the matter.

It’s acceptable to inform the employee of her eligibility for a leave of absence under federal or state law or company policy/practice. However, the employee shouldn’t be pressured or forced to take such a leave unless, as previously stated, she poses a safety risk. She can be provided the necessary information and even encouraged (in a supportive way) to take the leave to address her condition. Keep in mind, any perceived pressure to take a leave of absence, especially one that is unpaid or reduces the employee’s income, can be construed as a negative, discriminatory employment action against the employee because of her disability.

November 29th, 2015, 8:47 PM |  Posted in: Labor Laws |
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