Employment Law Blog

Five things for HR Professionals to Double-Check Yesterday (Or as Soon as Possible)

In the day-to-day rush of business, it’s easy to overlook key employment issues, but they have a way of turning into true headaches for HR professionals. Below are five HR matters that have a habit of becoming bigger problems for employers, and if you aren’t paying attention to them, you may be putting the business at serious risk.

1. Independent Contractors vs. Employees

There’s a growing trend among employers to simply hire independent contractors in lieu of true employees. This helps employers sidestep payroll taxes, employee benefits and other overhead expenses. Employers can’t be too careful in how they classify these workers, however. The Department of Labor in recent years has looked increasingly at how these workers are classified, and it has opined in years past that many employees are wrongfully classified as independent contractors. This can have serious consequences for employers, with monetary sanctions for noncompliance.

2. Travel Time, Training Time and Off-the-Clock Work

Generally, time spent traveling for work outside of work hours is not paid time, but even this has limitations. If the employee drives herself at the request of the employer, that is paid time, and if the whole trip occurs within a working day, it is most likely all paid time. This also means that all travel time during working hours is paid time.

Training time is paid time unless it is outside regular working hours, it’s fully voluntary, it is not related to the employee’s job and the employee doesn’t work while at the training. Otherwise, training is paid.

The overtime rule didn’t change for the time being, but that doesn’t mean employers don’t have a serious problem with off-the-clock work by non-exempt employees – employees who don’t qualify for overtime exemptions and are typically paid by the hour. In the age of smartphones, text messages and constant email, employers run the risk of accruing wage and hour liability for all the time an employee spends doing company business outside of work. Change up your policies and cultivate an environment where work for hourly employees, including checking email and handling other work-related communications, stops cold at the end of the day. Otherwise, start looking for ways to monitor that work, or you may find your business paying a penalty.

3. FMLA and ADA Interplay

Everyone knows that the Family and Medical Leave Act (“FMLA”) allows for up to 12 work weeks of unpaid leave for an unwell employee. What causes confusion (and headaches) for HR professionals is that the Americans with Disabilities Act may require more leave as an accommodation once FMLA leave expires if the illness that prompted the FMLA leave qualifies as a disability under the ADA. Also, while FMLA only applies to certain qualified employees for certain groups of employees, that doesn’t mean that the ADA won’t require medical leave for employees who don’t qualify for FMLA if the illness is considered a disability.

4. Bad Weather Policies

This is another area that breaks down along lines of hourly and salaried (or non-exempt and exempt) employees. When bad weather forces a business to shut down, hourly employees can be sent home or told not to come in, and they only must be compensated for time actually worked. Salaried employees, on the other hand, are a bit tricky. If a salaried employee works at all during a week in which the business is closed, she or he must be compensated for the entire week. The only real exception to this is if the business is closed for the entire week and the employee does no work at all during that week. The bright side to this for employers is that exempt employees can be made to use their paid time off to compensate for bad weather closures, although this can only be done to the extent the employee has any time remaining to use.

5. Sexual Harassment

Sexual harassment is on everyone’s mind these days, with a renewed focus by the general public. While the best ways to prevent sexual harassment are to have clearly written policies that are effectively taught and enforced, the issue is still not likely to go away entirely. In that case, employers must do three things effectively to protect both the employees and the business:

• Take accusations of sexual harassment seriously and investigate them fully. Too often, serial harassers maintain positions within organizations because the organization fails to take the accusations seriously.
• Provide alternate chains of reporting. An employer that requires all employee complaints to go to direct supervisors fails to account for the fact that the prevailing forms of sexual harassment take place between direct supervisors and subordinates. Alternate reporting chains allow employees to bypass harassers in the chain of authority directly above them, providing accountability.
• Take action against harassers. This is one of the more difficult areas for employers to manage, as it is often the more important members of the business – the top brass, the rainmakers, the most successful salespeople: those who hold positions of power – who become serial harassers. They do so precisely because of the power these positions afford them, and therefore businesses are often reluctant to impose consequences for their behavior. This is counterproductive, however, and it will affect the business negatively in the end. Appropriate action must be taken in an effective, efficient and fair manner.

Hopefully we’ve managed to clear your mind of some HR headaches. For everything else, we can help. Give us a call today.

Cynthia L. Effinger, Member with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400, ext. 2316.

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This article does not constitute legal advice.