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May21

Termination/Confidentiality

Does the person being let go have the right to know the reason why they are being let go? Does the State of Iowa have a law stating that the HR Manager or Assistant Co. Manager do not have to release this information?

Iowa, like most states, is an employment-at-will state. Meaning, an employer can terminate the employment relationship at any time with or without cause.

However, an employer cannot terminate an employee based on personal characteristics as defined under both federal and state laws. Under these laws, it is illegal for an employer to discriminate against an employee based on sex (including pregnancy and childbirth), sexual orientation or identity, genetic information, disability, age (over 40), national origin, race, color, religion or citizenship status.

Also, if a collective bargaining agreement, employment contract, employee handbook or company policy states that an employee may only be terminated for cause or under certain situations and must be informed of the reason for termination, the employer must abide by the agreement.

There is no Iowa law that states employers are required or prohibited from informing employees of the reason for their discharge. Whether an employer chooses to disclose the reason for termination or not is up to the employer.

Though an employer may not be legally obligated to disclose the reason for termination, it’s often advised to do so in order to reduce the risk of a wrongful termination claim. By not informing an employee as to why he is being terminated, he is forced to assume any reason he can think of. If he happens to be the only minority employee or one of the oldest employees or the only employee with a disability, he may assume he was terminated based on these reasons. If the employee then filed a wrongful termination claim, the employer would be required to prove the actual reason for the termination in court.

Additionally, employees who feel they’ve been treated unjustly are likely to discuss their bad experience with anyone who will listen. Meaning, the employer’s reputation could significantly suffer.

May 21st, 2015, 6:15 PM |  Posted in: Termination |
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May19

Job Interviews in Public

Is interviewing an applicant for a job in a public place (coffee shop) or in the office but within earshot of other people (employees or other guests)violating any employment laws or regulations?

Not at all. Employment laws prevent illegal discrimination in hiring practices and employment actions. There is no law that specifically defines where interviews must occur. In fact, there is no law even requiring interviews. Such practices are at the discretion of the employer.

Whether conducting an interview in public is appropriate depends on the type of interview and position. Most job interviews that occur in a public place are preliminary, informational or for jobs that don’t have a worksite. The follow up interview to conduct a skills assessment provide details about the position should occur in the actual workplace.

May 19th, 2015, 8:26 PM |  Posted in: Hiring and Staffing |
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May19

Taxes

I have a client that in located in Minnesota and hired an employee to work remotely from Ohio. In which state do I withhold tax and pay unemployment?

The general rule of thumb is to follow the employment laws of the state in which the employee is providing the majority of his services. Thus, if the employee works remotely in Ohio, then Ohio employment laws apply.

The same rule of thumb applies to withholding taxes.

Generally, employers are required to withhold state income tax and pay unemployment based on where the employee performs his work. Just a note, neither of these states has reciprocal agreements with the other. Thus, Ohio income tax must be withheld and you must pay unemployment to Ohio.

May 19th, 2015, 7:52 PM |  Posted in: Compensation |
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May19

Terminating Employee on LTD

We have an employee that went on STD in July 2014 and subsequently was approved for LTD in January of 2015. Since then she has not returned to work. This is a chronic medical issue for which she went on STD in 2013; as well as FMLA leave. A return to work date has not been determined for this employee and we need to fill her position as soon as possible. As of April 2015 no FICA taxes are being deducted. Can we terminate this employee? If so, what should we enter as the reason?

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12 month period for specified family and medical reasons. It seems as though the employee has exhausted her FMLA leave entitlement already. If this is the case, then the Americans with Disabilities Act (ADA) must be considered.

The 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. In order for a disabled employee to be covered under the ADA, she must be able to perform the essential functions of the job. Essential functions are the fundamental job duties that an employee must be able to perform on his own or with the help of a reasonable accommodation.

So, reasonable accommodations must be considered if the employee is able to perform the essential functions of her position. Assuming so, it’s then the employer’s responsibility to engage in an interactive process with the employee.

The interactive process is used to determine if a reasonable accommodation, such as an extended leave, should be provided to the employee.

It’s important not to assume that since the employee claims LTD she is not entitled to protections under the ADA. During the interactive process, a back and forth communication exchange between the employer and employee is necessary in order to establish the existence of a qualifying disability and to help determine what, if any, reasonable accommodations can be provided. The determination about the reasonable accommodations to be provided is ultimately up to the employer.

If medical evidence shows the employee will not be able to return to work and the employee is unable to provide information suggesting the ability to work in the future, the employer would not be required to provide a never ending leave of absence. Thus, a reasonable accommodation would not be possible and termination may be warranted.

Remember to document all communications with the employee and the reasoning for your determinations.

Many companies choose to use “failure to return from leave” as the reason for termination in such situations.

May 19th, 2015, 7:26 PM |  Posted in: Termination |
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May19

Exempt Employees’ Holiday Pay

We have a 24 hour/ 365 day operation. All employees are exempt. The work schedule is 10 hour shifts M – Th and 12 hour shifts F – Sun. Holidays will always fall on someone’s “scheduled day off”. The holiday falls on a Monday but the Monday shifts works. Do they need additional pay since they worked on a holiday even though this is their normal work schedule? The F – Sun shift gets Monday off but it’s their normal off day. Do they need additional pay?

There is no federal law (or state law that I’m aware of) that requires employers to provide employees with paid holidays. Providing additional pay to employees for working holidays or providing holiday paid time off is a matter of agreement between the employer and employee. Thus, employers are generally free to adopt holiday policies of their choosing.

It’s important to note the federal Fair Labor Standards Act (FLSA) which establishes compensation guidelines for employees.

Under the FLSA, non-exempt employees are paid per hour worked and must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. Exempt employees receive a fixed predetermined salary for any workweek during which work is performed.

The FLSA doesn’t require overtime or special pay for employees working holidays nor does it require payment for time not worked such as for a holiday. So, non-exempt employees need not be paid additional for working a holiday and need not be paid for not working a holiday.

Just like non-exempt employees, exempt employees are not required to receive additional or special pay for working holidays nor are they required to receive additional pay if a holiday falls on their normal day off. They must only receive their full salary for the workweek.

Although holiday pay or holiday paid time off may not be legally required, many companies choose to offer such benefits in an effort to attract and retain good employees. So, you may consider adopting a holiday policy. If an exempt employee is expected to work on a holiday, many companies will offer an additional day off within a specified time frame or add the time to a paid time off bank.

May 19th, 2015, 1:14 PM |  Posted in: Compensation |
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