OVERTIME RULE CHANGES ARE COMING!

By: Sarah Zasso, SHRM-SCP, SPHR

Do you have exempt employees?  If so, there are some big changes on the horizon that may make a large impact on your organization, regardless of size.  By the close of 2016, the new FLSA overtime rules are anticipated to take effect.

What is exempt?  Exempt, put simply, means exempt from overtime.  The employee makes the same weekly salary whether they work 35 hours or 55 hours per week. Currently, there are two thresholds that must be met for a position to be exempt: 1) the salary must be at least $455 week and 2) satisfy the job duties test.

The DOL (Department of Labor) has proposed a revision to FLSA (Fair Labor Standards Act) regulations in concern to overtime.  The DOL has proposed to change the salary minimum from $455/week to $970/week.  What does this mean for you?  This means that you may have employees who are currently exempt who will no longer qualify as exempt under the new salary test.  They would become nonexempt and you will be required by law to pay them overtime for all hours worked over 40 in a scheduled workweek.  Now, you may be thinking – this isn’t going to pass, there’s no way!  I’m sorry to disappoint you, but all signs are pointing to the change getting approval and put in effect by the end of 2016.  However, the salary may not increase as much, but will almost certainly have some form of a significant increase.

So, what do you do?  If you have exempt employees, the time is now to start determining their status if this change does in fact take effect.  I wish I could tell you that there is a “one size fits all” answer, but that would be untrue.  Each situation/company is different.

Note:  Before you take ANY action, please consult an HR Consultant ( like Sabeza HR!) or an employment law attorney.  It is critical to think “big” picture.  Not only do you have to take into consideration salary, but also potential discrimination risk.

Below are some initial steps provided by SHRM to help with your compliance efforts in preparation of the final overtime rule release:

• Identify currently exempt jobs with salaries that fall below the proposed new salary threshold for exempt employees, using $970 per week, or $50,440 per year.
• Determine whether to have a zone within which employees close to the new threshold will get bumped up to maintain exempt status, or whether the approach will be to reclassify as nonexempt all employees whose current salary is below the new minimum.
• For employees who probably will be reclassified, understand now how many hours they are working per week so employers can model pay going forward with reasonable accuracy.
• Determine what approach to take in setting nonexempt pay rates. Will the hourly rate simply be the current weekly salary divided by 40, or will there be an effort to replicate current pay and hours, such as by lowering the hourly rate to account for the possibility of overtime compensation.
• Consider whether to reclassify other positions at this time to manage risk and enhance compliance.

REMINDER:  This is all based on “position,” not the “employee.”  These are initial steps, please consult a human resources consultant and/or an employment law attorney before you take any action.

It is also important to consider what operational changes will be made to account for the reduction or shift in workload.  Should you hire more employees?  Can you afford more employees – what if you can’t?  These are questions you should be asking yourself now.

Lastly, how will you communicate this to employees?  Some employees like the “status” of being exempt, it’s important to express the change to them in a manner that does not reflect their performance or stature within the company negatively.  Some may just not understand – it’s important to provide clear, concise, and consistent communication.

I recommend you start this process now, so that you are not unprepared when the change takes effect.

If you have questions or concerns, please do not hesitate to contact Sabeza HR.  As your Human Resources Solution, we are here to help you navigate this confusing process.

Sarah Zasso is the Owner/Principal HR Consultant of Sabeza HR (www.SabezaHR.com), a Human Resources Consulting and Recruiting company.  Sarah has almost 15 years of Human Resources experience, achieved both the SHRM-SCP and SPHR certifications, earned a Bachelor’s degree in Organizational Leadership and Communication, and currently serves on the Board of the Coastal Organization of Human Resources.  If you have any questions, please do not hesitate to contact Sarah at [email protected].  

This article is for general information purposes only.  I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.

Is Your Company at Risk?

Owners/Managers BEWARE!

We live in a litigious society.  An unfortunate, but true fact.  The article below published by SHRM, demonstrates how claims filed with EEOC are on the rise – particularly with regard to retaliation and ADA.  And yes, this affects you and every company!

You may “think” you are doing the right thing, but in actuality, you may be violating an employment law or regulation. Educate yourself or hire an HR professional.  If you are unsure what retaliation or the ADA interactive process are, then you need to hire an HR professional who can expertly guide you through the processes.  And don’t forget, your managers and supervisors represent you and your company in the eyes of the law, they must be educated too and understand when/how they need to respond and when to escalate in regard to employee matters.  If you are not training and educating your managers and front line supervisors, you are at risk.

Fortunately, Sabeza HR can help.  We can help you put the appropriate policies/processes/training in place and help you navigate employment law.  Call us today at 843-668-4041 to schedule a consultation! And visit www.SabezaHR.com for additional services we have to offer.

The article below from SHRM provides some valuable information related to Retaliation and ADA.

Retaliation, ADA Charges Rise

Take action to reduce claims filed with the EEOC

By Allen Smith

2/17/2016

Employee-friendly U.S. Supreme Court decisions on retaliation and legislative changes to the Americans with Disabilities Act (ADA) that occurred years ago are still boosting the number of charges filed with the Equal Employment Opportunity Commission (EEOC). However, employers can take steps to reduce the likelihood that they will get hit with those types of charges, legal experts say.

Retaliation charges increased by nearly 5 percent in 2015, rising from 37,955 charges in 2014 to 39,757 last year, according to EEOC enforcement data released Feb. 11. ADA claims rose by 6 percent, from 25,369 in 2014 to 26,968 in 2015, surpassing gender discrimination charges as the third most common type of allegation. Retaliation remains first, and race discrimination is second. Overall charges rose from 88,778 in 2014 to 89,385 in 2015.

The upward trend in retaliation claims is due to the Supreme Court deciding every retaliation case before it in the last 10 years in favor of employees, said Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C. ADA claims continue to rise because of the ADA Amendments Act of 2008, which expanded the definition of “disability,” he added.

Staving Off Retaliation Claims

Many jurors believe retaliation is commonplace, said Michael Reiss, an attorney with Davis Wright Tremaine in Seattle.

And employers should expect to see more retaliation claims in light of the EEOC’s Jan. 21 proposed guidance, which broadly interpreted “retaliation,” noted Bernard Tisdale, an attorney with Ogletree Deakins in Charlotte, N.C.

So, employers should have a specific policy that retaliation against anyone in response to a complaint or investigation will not be tolerated, Morris said. Threatened retaliation should be prohibited as well.

When a lawsuit by an employee includes claims against a manager, that manager should be “intensively trained” on the law’s prohibition on retaliation. Thoughts about retaliation may be a natural reaction, but the manager must not take action along those lines, Morris noted.

If an employer receives a complaint of discriminatory activity, it should properly and promptly investigate and take appropriate action. This might prevent the claim from escalating into a retaliation claim. In addition, the information gathered may help an employer make smart decisions about how to handle the claim (e.g., whether to settle a claim early through mediation), depending on how big a problem it is, noted James Hux Jr., an attorney with Fisher & Phillips in Chicago.

If a discrimination charge has been filed and the supervisor wants to discipline the employee who brought the charge, HR needs to review the proposed discipline to determine whether the action is retaliation rather than merited. That includes analysis of whether a rule, such as a tardiness or absenteeism rule, is being enforced more harshly against the employee than it typically is against others, Morris explained.

Discipline may go forward in some cases, Reiss noted, saying that the filing of a claim isn’t a get-out-of-jail-free card.

Discipline just needs to be consistent and fair, Hux agreed.

ADA Pointers

Just as some supervisory training may be in order to prevent retaliation claims, ADA claims can be reduced through managerial training as well. Specifically, supervisors need to be trained to recognize an accommodation request even when an employee doesn’t use the words “reasonable accommodation,” Morris noted.

Front-line supervisors also should be trained to immediately get HR involved when someone comes forward with an accommodation request, Reiss said. The reason? Supervisors may be afraid to ask anything, but HR will know that an employer can legitimately ask for documentation of a disability if it is not apparent and an accommodation has been requested.

ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the law. So, employers should have protocols in place on how to respond to accommodation requests and should document those efforts. This is “incredibly important” if there is litigation, Morris said.

If there is an agreement on an accommodation, put it in writing and have the employee sign the document, he recommended.

Remember that under the ADA, the accommodation obligation is ongoing. “Just because you’d done everything right in 2015 doesn’t mean you don’t need to do everything right in 2016,” he said. Things change, and the employer should be ready to start the accommodation conversation on fresh footing if the employee requests a new accommodation.

“Treat all assertions of disability seriously,” said Stanley Pitts, an attorney with Honigman in Detroit. “Be consistent in handling such claims, and if you choose to keep accommodation records, be sure they are complete.”

Sarah Zasso is the Owner/Principal HR Consultant of Sabeza HR (www.SabezaHR.com), a Human Resources Consulting and Recruiting company serving the United States.  Sarah has almost 15 years of Human Resources experience, achieved both the SHRM-SCP and SPHR certifications, earned a Bachelor’s degree in Organizational Leadership and Communication, and currently serves on the Board of the Coastal Organization of Human Resources.  If you have any questions or would like to schedule a consultation, please do not hesitate to contact Sarah at [email protected].

 This article is for general information purposes only.  I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.

Get Ready for 2016 – Employee Handbook

Getting ready for 2016?  Don’t forget about your employee handbook!  Don’t have one?  No problem, I would be glad to help you create one.  Not sure the last time your handbook was updated?  OK, go get the handbook from your bottom file drawer, wipe off the dust – if it is more than one (or two) years old without a review, then it’s time for an update.

Clients often share with me that they don’t “like” handbooks or they don’t “need” them.  That always confuses me because why wouldn’t you want a handbook?  A handbook performs two simple, yet very important, functions.  One – it tells the employee what they can expect from the company (benefits, payday, etc) and Two – it tells the employee what the company expects from them.  Why would you not want to share that with an employee and set expectations?! 

Handbooks can help win unemployment claims and can often help provide legal protection in the case of an employee lawsuit.  Handbooks, if written and executed correctly, actually help protect you as the employer.  And they help set the culture of your company.  It’s a win-win!

I have one goal – I treat my clients as I would want to be treated.  Let me help you reinforce the culture of your company and limit your risk.  Start 2016 off right with a new or updated employee handbook, contact me today to schedule a consultation at 843-668-4041.

Sarah Zasso is the Owner/Principal HR Consultant of Sabeza HR (www.SabezaHR.com), a Human Resources Consulting and Recruiting company serving the United States.  Sarah has almost 15 years of Human Resources experience, achieved both the SHRM-SCP and SPHR certifications, earned a Bachelor’s degree in Organizational Leadership and Communication, and currently serves on the Board of the Coastal Organization of Human Resources.  If you have any questions or would like to schedule a consultation, please do not hesitate to contact Sarah at [email protected].  

This article is for general information purposes only.  I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.

How do I Guarantee Not to Get Sued by an Employee?

How do I Guarantee Not to Get Sued by an Employee?

By Sarah Zasso, SHRM-SCP, SPHR

So, how can you guarantee not to get sued by an employee?  The answer is—are you ready for it?—you can’t.  I’m sorry to say that I nor anyone else can ever “guarantee” that you won’t be sued by an employee for wrongful termination, failure to hire, promotion/demotion, disciplinary action, investigations, etc.  We simply can’t control the actions of others.  Even if everything is done right—even if every “i” is dotted and every “t” is crossed.  Even if it was all handled with respect and by the letter of the law.  That’s the reality, there is no guarantee.  That’s the bad news.

However, there is good news!  There are many things that you can do to try to prevent a lawsuit, reduce your risk, and put yourself in a more defensible position if legal action is taken against you or your company.

We currently live in a litigious society where every employment action must be considered with a legal perspective.   What is an employment action?  Generally, that is referring to hiring/firing, promotions/demotions, internal investigations, pay/wages, disciplinary action and so on.

What can employers do to reduce risk and put themselves in more defensible positions?

Know and follow the law!  Ignorance of the law is not an excuse for an employer.  Understand which laws apply to you—federal and state (laws are different in each state).  Depending on the number of employees you have, certain laws and statutes apply to you.  For more information, visit http://www.dol.gov/compliance/guide/index.htm.

Have a handbook!  A handbook is a wonderful tool and can be one of the biggest pieces of your defense.  A handbook serves two very simple, yet important functions.  It tells the employee what to expect from the employer (PTO, holidays, pay day, legal, etc) and tells the employee what the employer expects from them (Harassment Policy, Violence Free Workplace Policy, Standards of Conduct, etc).  Ensure that each employee signs a handbook acknowledgement upon hire and review/update your handbook every 1-2 years.  Not only does the handbook and acknowledgement form help you from a legal perspective, it also helps you with unemployment claims if an employee was terminated for cause for a violation of a policy.  Note: Be careful with handbooks/acknowledgements and have them created/reviewed by a professional because there are additional legalities to consider, such as implied contracts.  There is specific verbiage that should be included in handbooks (depending on state) to ensure clarity and protection.

Be proactive!  We are busy.  I get it.  But taking the time to ask some questions when you start noticing abnormal behavior (employee who is normally outgoing and happy is now quiet and reserved) can prevent situations in the future.

Say something!  If you (referring to managers/supervisors) see something, say something.  If an employee knows that you observed inappropriate behavior and didn’t do anything about it, they will think it is okay and will continue.  As will others.  If you allow repeated violation of a policy, that then becomes “practice” and that can hurt you in a lawsuit.

Be consistent!  You must apply the policies equally.  I’m not saying not to take into account length of service (someone with you for 10 days vs. 10 years) or past disciplinary action, etc.  I am the first to admit that Human Resources is very gray vs. black and white, but all things being equal, treat everyone the same.  Ask yourself if you want to hold someone accountable—“Would I hold my top performer accountable the same way as my bottom performer?”

Maintain appropriate documentation!  Let’s be honest, none of us like documentation.  But, it is the key to a strong defense if you should ever find yourself in litigation.  Former coachings, verbal warnings, disciplinary actions are critical.  If conducting an investigation, document conversations the same day if possible, but within 24 hours.  Document conversations with all parties.  Ask the employees involved for statements as well.  Sometimes, the best defense is an employee’s own statement.  Statements serve many purposes – the employee feels respected and they feel heard, it can demonstrate that you conducted a thorough investigation, and statements often confirm or provide new information.  Document the “why’s” behind other employment actions such as, hiring, firing, demotions, layoffs, etc.

Respect everyone involved!  We are human, we have emotions, but it is important to treat everyone with respect throughout the process—whether it is a termination with cause or an application rejection.  You may find that “respect” can make a huge difference in current and former employee’s attitude and behavior towards your company.

Do the right thing!  Clients often ask me, “Is this legal?”  However, that should not be the only question.  Just because it is legal does not mean that it is the “right thing” for the employee or the company.  I run my business on the thought process of “Treat others as you want to be treated.”  Ask yourself before you make a decision that is questionable: “Would I want someone to treat my Mom/Dad this way?  My Son/Daughter?  Wife/Husband?”  If you have to “question” it, take a step back and verify first that it is legal to take that action, then determine if it is the right thing to do.

I know it can be scary navigating the world of litigation and employment law.  Employment law is fluid and continues to change.  Court decisions from five years ago are now being overturned.  I’m not trying to scare you, but educate and prepare you.  I hope you never have a lawsuit, but if you do—make sure you have reduced your risk and put your company in a more defensible position.  Before you make a decision on an employment action, ask yourself: “Can I defend this on the stand in a court of law? Do I know the law?”

Sarah Zasso is the Owner/Principal HR Consultant of Sabeza HR (www.SabezaHR.com), a Human Resources Consulting and Recruiting company serving the United States.  Sarah has almost 15 years of Human Resources experience, achieved both the SHRM-SCP and SPHR certifications, earned a Bachelor’s degree in Organizational Leadership and Communication, and currently serves on the Board of the Coastal Organization of Human Resources.  If you have any questions or would like to schedule a consultation, please do not hesitate to contact Sarah at [email protected].  

This article is for general information purposes only.  I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.

Sabeza HR Announcement!

Sabeza HR is thrilled to announce that Smart Staffing Group, located in Poughkeepsie, NY, has selected Sabeza HR as their EXCLUSIVE HR Consulting partner to provide Human Resources services to their clients!  Smart Staffing is a minority woman-owned staffing firm that focuses on identifying and recruiting top talent for administrative, bilingual, clerical, customer service, healthcare, manufacturing and warehousing positions.

Sabeza HR is a Human Resources consulting firm located in Myrtle Beach, SC and provides HR Consulting throughout the country.  Sabeza HR is here to make your life easier and your company more profitable!  We can help with training, development, culture, compliance and so much more.

Sabeza HR and Smart Staffing are a perfect match and we look forward to providing exceptional service to employers in the Hudson Valley, NY and surrounding areas.  For more information on our services, please visit www.smartstaffinggroup.com and www.sabezahr.com.  We look forward to working with you!