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Happy Holidays, New Year's Resolutions and All That

Written by: Charla Bizios Stevens

Published in NEHRA News (12/19/2019)

It’s that time of year HR Pros!  Holiday parties, too much food and drink, devolving into that awful HR role of party planner and gift giver, and a list a mile long of things you meant to get to before year end which, somehow, just didn’t get done.  Here’s an idea.  Let’s not think about what we didn’t do, but focus instead on a real plan for what we realistically can accomplish in 2020, the start of a brand new decade!  I’m not talking about strategic planning or high level forecasting for your business, which is of course critical to success.  I’m talking about simple things which you know you should do (or we employment attorneys have been telling you  to do); things you can do yourself or delegate. Here’s my list of 2020 to-do’s!

Remember That the Federal Overtime Salary Threshold Changes on January 1

In order to be exempt from overtime under the Fair Labor Standards Act, an employee must be paid a minimum salary and meet certain duties tests, typically under the main categories of executive, administrative or professional.  If an employee is not paid this minimum salary or if they do not meet the duties test, they are eligible for overtime pay at one and a half their regular rate for hours worked in excess of 40 in a workweek.  The minimum salary threshold is being raised from $455 per week to $684 per week, which equates to $35,568 per year for a full year worker. So if you haven’t done so already, review the salaries of your exempt workers to make sure they meet this test. Otherwise, you need to raise their pay or change their status to non-exempt.  More information can be found at https://www.dol.gov/agencies/whd/overtime/2019.

Update the Employee Handbook

Get this done in Q1.  I know you meant to do it.  I know you think you can squeeze it in or would prefer to do it yourself, but maybe you need some help.  I review hundreds of employee handbooks every year, some because I or one of my colleagues is revising one, but many because I need to review company policies in conjunction with an external investigation or litigation I am handling.  Most are terrible.  They are dense and legalistic where they don’t need to be and leave out important details where more is needed.  Some haven’t been updated to take new laws into account.  Some are cookie cutter, off the rack (to summon some holiday shopping metaphors) tomes which are not state specific or at all tailored to the workforce which will use them. The worst are badly written and internally inconsistent.  Do me a favor:  read your employee handbook from cover to cover, in one sitting, and then scrutinize it honestly.  Is it a useful tool for your workforce?  Are they going to find the answers they need without having to come to you for translation? Will you be able to stand by its policies when you decide to terminate an employee for a policy violation or if your company is sued for discrimination or wrongful termination?

Train Your Managers

OK, that last one sounded preachy, but you know it needs to get done.  So let’s move on to your managers, forepersons, supervisors, team leads. Whatever you call them, these are the individuals you can get your company in legal trouble.  Train them in Q2.  Train them how to be supervisors, how to give feedback to employees, and when to come to HR.  Make sure they have at least a good working knowledge of employment laws.  They don’t need to understand the FMLA regs (Lord knows most of us have to review them time and again to make sure we are correct before we speak), but they should at least know what might trigger an inquiry about FMLA leave or ADA accommodations.  They should know how to document and discipline employees and the reason you are asking them to be more diligent about all of that.  Employees at many levels and in many businesses are promoted to management positions because they are good at the jobs they were hired to do:  make widgets, bake pastries, teach students, even practice law.  However, when their jobs change to managing other people, often people who were formerly their peers, they are often at a complete loss.  So, let’s talk about training…supervisor training, communication training, and yes, legal training. Oh, and you’ll need to train them on the policies in your shiny new handbook.

Speaking of Training

You need to at least start this in Q2….comprehensive workforce training which hits on harassment, discrimination, bullying, professionalism and civility.  We all know that the world is a different place than it was at even the start of the last decade.  Customers, bosses, and employees are all more demanding and entitled and, sadly, people are just not as polite as they used to be.  This is called incivility, and it’s everywhere; at home, at work, on Facebook and Twitter.  It’s been more than three years since the EEOC issued its Report of the Select Task Force on the Study of Harassment in the Workplace, where it recommended that workplace training be revamped and concluded after a year-long study that incivility is often a precursor to harassment and discrimination.  Since then we have seen the likes of Harvey Weinstein, Matt Lauer, Kevin Spacey, and many others go down in flames.  We have also seen the rise of hashtags #metoo, #timesup, and #whyididnt report.  If you don’t do comprehensive workplace training for all employees now, start in Q2.  And remember the EEOC’s suggestion that such training be live, interactive, and workplace specific rather than web-based, general, and compliance based.  It should, most importantly, focus on changing behavior rather than avoiding liability and should include components of workplace civility and bystander intervention education.

Audit Yourself

Q3 would be a great time to think about a self-audit, done internally by you or your team or by an outside consultant or attorney.  The best defense to problems is knowing where your weaknesses lie.  While or before auditing yourself, make sure your job descriptions are updated and accurate and that they contain the information needed to assess classification, pay equity and ADA issues.

  • Are you personnel files up to date with confidential medical and background check information stored separately? Do you have non-solicitation and confidentiality agreements signed and in the right place?  Are employees classified correctly as exempt or non-exempt?
  • How about your payroll practices? Do your time records accurately reflect the hours that employees worked and were they paid at the correct rates for all time worked? Are supervisors changing time entries without the knowledge of employees?
  • Has anyone looked at your I-9’s to make sure they are being completed properly? This is a huge risk area in the event of an audit, and fines can be significant even if all of your workers are legally employed.
  • What about pay equity? This has been and will continue to be a major compliance and litigation focus in the coming year.  Performing a self-audit of your pay practices can be a defense in some states, including Massachusetts.  Are you paying employees equally for comparable (not simply the same) work?  This is a time consuming and labor intensive audit to do, but it is a critical one.

And now that we’ve made a plan for 2020, we are back to Q4 and year end.  Good luck with the party planning, gift giving and holiday bonus calculations.  Don’t try to do too much more and fingers crossed that nothing happens at the holiday party to require an investigation!  You’ve got this!

Charla Bizios Stevens chairs the Employment Law Practice Group at the law firm of McLane,  Middleton, P.A. Charla can be reached at [email protected] or followed on Twitter at @charlastevens.   She also contributes regularly to www.employmentlawbusinessguide.com.

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