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Archive for May, 2018

WAGE AND HOUR POTHOLES

Every company should perform wage and hour audits periodically; minimally once a year and twice a year if possible.  It is easier for you to catch and correct errors than to risk discovery from employees or in the event of a DOL audit.  To remain compliant with wage and hour regulations it is valuable to have the appropriate checks in place, such as up-to-date written policies and procedures, periodic training for supervisors and managers, the establishment of effective complaint mechanisms, and a regular audit process should be established.

Wage and hour violations are not only costly from the standpoint of back pay and penalties but can also lead to serious employee relations issues if employees feel they are not being fairly compensated.  Below are a few of the many wage and hour potholes of which you should beware.

Overtime Pay

Many missteps can occur regarding overtime pay, a few include:
•    Misclassifying workers as ‘exempt’ from overtime
•    Not paying ‘unapproved’ overtime
•    Failing to count all hours worked, including pre and post work activities
•    Failing to count certain activities as work time including working through a break
•    Checking emails or performing other duties during time off
•    Travel time and meeting and training attendance

Bonus or commission payments to nonexempt employees may impact overtime pay.  A bonus should be included in the calculation of the regular rate of pay for the weeks which the bonus is earned.  This will increase the overtime rate for these weeks.  The weeks for which the bonus is earned includes all weeks covered by the bonus period.  For example, if it is a quarterly bonus then all weeks in the quarter will apply.

Another consideration for computing overtime pay is when an employee works two or more jobs with different hourly rates at one or more facilities for the same employer in the same work week.  The employer must use the weighted average of the rates to compute the employee’s regular rate of pay for the purpose of calculating overtime pay.

Exemption Status / Salary Basis Test

Do you examine the duties of your salaried employees and not just their titles or how they are paid in determining whether they are exempt?  Your exempt employees must pass one of the FLSA exemption tests in order to be exempt from being paid overtime.  These exemption tests are based on actual work performed and do not test based on the job title nor what is written in the job description.

For a job to remain exempt it must pass the Salary Basis Test which ensures that improper deductions to exempt employee’s salary are not made.  There are very specific rules to follow when making any deductions to an exempt employee’s salary.  Also, a job that is exempt can lose exempt status when the duties and responsibilities change due to things such as staff reductions or organizational changes.  Therefore it is advisable to retest jobs that are impacted by these types of changes.
Meal and Rest Period Compliance

Many state wage and hour laws require employers to provide their employees with meal and/or rest breaks. These laws specify the circumstances under which such breaks must be compensated. In some cases, state laws impose different requirements than does FLSA.

A few more potholes worth mentioning:

We have mentioned just a few of the many potholes HR professionals need to be aware when classifying jobs as exempt or nonexempt, overtime pay calculation, and rest period compliance. Here are a few more to keep in mind:

  • Failing to pay employees on day of termination
  • Failure to follow rules for On-Call pay;
  • Improper use of ‘Comp Time’
  • Unlawful deductions from employee paychecks.

Be sure to consult your federal and state wage and hour resources and/or your wage and hour counsel to ensure a thorough and correct understanding of wage and hour rules.

Remaining compliant with wage and hour regulations is an important task that Human Resources and Compensation department performs for an organization.  Another important task performed is to ensure fair and competitive pay practices.  For the good of your employees, it is helpful to analyze benefit survey data, compensation surveys and salary reports.  Having this information at hand allows you to plan a budget, including competitive employee salaries and benefits, which will help you hire and retain a happy, talented team.

At WageWatch, our expert consultants provide businesses, across a large range of industries, with accurate and beneficial benefits survey data, compensation surveys, and salary reports to ensure that payment and benefits plans are on par with those in the industry.  For more information on market compensation data, please call WageWatch at 888-330-WAGE (9243) or contact us online.

EFFECTIVE JOB DESCRIPTIONS

Job descriptions describe the major duties and responsibilities of a position or job and are an essential part of hiring and managing employees.  They are tools to help your applicants and employees understand their roles and accountabilities.  They can be used to establish a training checklist for new incumbents, as guideposts in the performance appraisal process, and as market benchmarks for compensation surveys.  Job descriptions are not required by law, however, they can provide evidence of the essential functions of a job for purposes of complying with federal employment laws.  They can also be used for disability and worker’s compensation claims.  It’s good practice to get legal advice to ensure that your job descriptions are compliant.  Below are some of the legal requirements to keep in mind while writing your job descriptions:

  • Fair Labor Standards Act (FLSA):  Exempt or Non-exempt classification should be included in all job descriptions.
  • Occupational Safety and Health Act (OSHA) and the Americans with Disabilities Act (ADA):  Working conditions and any required physical activity should be noted in all job descriptions.
  • Equal Employment Opportunity:   Include, “we are an equal opportunity employer” in all job descriptions.
  • Age Discrimination in Employment Act (ADEA):  Job descriptions should not indicate age preference.

The first steps in writing job descriptions are the data collection and job analysis processes which begins with questionnaires and/or interviews with both the supervisors and current employee incumbents to gather and determine the key facts about the job.  You will need to collect information that will later be summarized in your job description template.  Generally, the data  will include Job Title, Immediate Supervisor, Department, Pay Grade, Working Hours, and Travel Requirements, FLSA Status, Mission/Summary, Essential and Non-Essential Tasks and Responsibilities, Supervisory Responsibility, Job Requirements (education, skills and experience required for the job), Working Conditions, Physical Demands, Equipment Usage, and Disclaimer for Management Ability to Modify.

A job description should be practical and summarize the key elements of a job in a clear, concise manner.  Be specific and avoid using subjective adverbs or adjectives such as “frequently,” “some,” “occasional,” and “several.”  It’s important to build flexibility into a job description and ensure that it is dynamic and functional.  Flexible job descriptions will allow your employees to evolve within their positions as processes, technology, and organizational changes occur.  A well-written job description will require an investment of time and effort to accurately reflect your organization and unique jobs.

The duties list should contain each essential job duty or responsibility that is critical to the successful performance of the job.  The list should be prioritized with the most important listed first down to the least significant.  Do not include tasks that comprise less than 5 percent of the overall time.  Each Essential and Non-Essential Duty should be assigned a percentage of time and all duties together should total 100 percent.  Each duty should be described in one to three sentences; the first sentence should begin with an action verb.  Generally, there are one or two non-essential duties that total five to ten percent of the total time and are duties such as “Assist in special projects as required” or “Any other task assigned by the supervisor.”   This provides flexibility to change duties over time and captures occasional and unforeseen needs that arise.

At WageWatch our experienced compensation consultants can assist with your organization’s compensation needs.  We can help you ensure internal equity and compliance with regulations as well as help you structure your compensation programs to support your company’s business strategy and objectives.  WageWatch also offers accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

INTERN PROGRAM BEST PRACTICES

Is your summer intern program ready to launch?  A review of some important information will help to make your program a success.  First, ensure your program is compliant with the Department of Labor regulations regarding internships.  In the last couple of years, both the federal and state governments have been cracking down on the use of unpaid interns.  The use of ‘free’ interns has been significantly reduced since 2010 when the Department of Labor issued new criteria for employers using unpaid interns:

  • Internship needs to be structured as a training experience, similar to a classroom as opposed to the employer’s actual operations
  • The training given to the interns must benefit the intern, not the employer
  • Employers should see no immediate benefit from the intern’s work
  • The intern cannot displace regular employees; they should work under close supervision
  • In advance, establish that the internship is for a fixed duration of time and that the intern is not necessarily entitled to a job at the conclusion of the internship
  • There should be a clear understanding by both the employer and the intern that the intern is not entitled to wages for the time spent in the internship

If your program includes unpaid interns, consult federal and state wage and hour websites or legal counsel regarding regulatory compliance.  In addition to the regulations, many universities and colleges have specific requirements for the internship program up to and including providing educational credit.  If your intern program does not fit the regulatory criteria for unpaid interns, the same wage and hour guidelines that you follow for your hourly (non-tip) workforce will apply.  Interns are often paid at rates comparable to entry level positions within the department or discipline in which the intern will work.  Local market or industry salary surveys can assist you in setting competitive pay rates for your interns.

In addition to the compliance component of your intern program, below are some best practices to consider integrating into your program:

  • Recruit the right candidates by having a clear and thoughtful internship description
  • Designate a program manager and a manager as well as a mentor for each intern
  • Provide structure, even when they aren’t paid
  • Hold orientation sessions for all involved
  • Provide interns with a handbook and/or website
  • Provide interns with real work that is related to their major, that is challenging, that is recognized by the organization as valuable, and that fills the entire work term
  • Consider offering flex time for the interns
  • Host social events and activities for the interns
  • Encourage team involvement
  • Conduct exit interviews

Today’s world moves fast, and as an employer, you should constantly be monitoring and adjusting your business operations to meet the ever changing wants and needs of your employees.  At WageWatch, we offer accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, including market compensation data, benefits survey data and salary reports, please call WageWatch at 888-330-9243 or contact us online.

KEY OBJECTIVES OF A COMPENSATION PROGRAM

Compensation can be defined as a reward earned by employees in return for their time, skills, effort, and knowledge.  Compensation includes direct financial compensation, such as wages, bonus, and commissions, indirect financial compensation such as health and welfare, retirement and leave benefits, and non-financial compensation such as job training and development, recognition, and advancement opportunities.  A large percentage of the company budget is compensation, and therefore is a key component of the overall strategic human resource management plan.

A compensation package can include more than salary and bonus.  It can include health and welfare benefits, retirement plan, leave benefits, and various other benefits, and perks.  Companies that offer a mix of salary and incentives have the highest employee morale and productivity.  It is most effective to pay incentives as soon after goals are met as feasible such as monthly or quarterly incentive payments, rather than annual payments.  A good incentive plan should be easily understood by the employees including no more than two to four performance factors.  How you train, develop, and manage your employees will also drive retention and performance.

When developing your compensation program, primary objectives to consider are:

  • To attract the best people for the job
  • Retain high performers and lower turnover
  • Reward performance on specific objectives by compensating desired behaviors
  • Motivate employees to perform their best
  • Improve morale, job satisfaction, and company loyalty
  • Align with overall company strategy, goals and philosophy
  • Achieve internal and external equity
  • Comply with all pay and non-discrimination regulations

While compensation is not the only thing that motivates people, compensation that is too low will demotivate employees.  Studies have found a direct correlation between top performing companies and employees that are satisfied with their pay and benefits package.  Competitive and appropriate pay can positively impact customer service.  Employees receiving fair and competitive compensation packages are generally happier with their jobs and are more motivated to perform at their peak.  Motivated employees can add to the bottom line of the organization and contribute to growth and expansion. Studies show that motivated employees take fewer sick days and have fewer disability claims.

While there are many objectives to a successful compensation program, two key objectives are ensuring internal equity and ensuring external competitiveness.  Salary surveys provide the necessary market data to build competitive pay structures.  Good salary survey data provides you with the information needed to ensure your compensation package is competitive.  Salary surveys are an invaluable tool for the setting right compensation strategy and for following and monitoring the desired pay market.  It is important that you select the right salary and benefits surveys and market data for your employees based on where you are competing for talent in your industry and outside your industry as well as geographic location.

WageWatch offers accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  The PeerMark™ Wage Survey is the only Web-based custom survey tool that allows individual survey participants to select their competitive set for comparison purposes.  Our experienced compensation consultants can assist with your organization’s compensation needs.  We can help you ensure internal equity and compliance with regulations as well as help you structure your compensation programs to support your company’s business strategy and objectives.  For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

FAMILY MEDICAL LEAVE ACT (FMLA) AND JOINT EMPLOYMENT

Joint employment exists when an employee is employed by two or more employers who both benefit from the employee’s work and are sufficiently related or associated with each other.  The analysis for determining joint employment under the FMLA is the same as under the FLSA.

Joint employment can exist when employers have the arrangement to share the employee’s services or when one employer acts in the interest of the other in relation to the employee.  Joint employment is based largely on the degree of association between the employers and how the employers may jointly control the employee.

Factors key to determine joint employment include:

  1. Do the employers have any overlapping management or share control over operations?
  2. Is supervisory authority over the employee shared and/or do they share clients or customers?

According to the Department of Labor’s fact sheet, employees who are jointly employed by two employers must be counted by both employers in determining employer coverage and employee eligibility under the FMLA, regardless of whether the employee is maintained on one or both of the employers’ payrolls.

When joint employment is determined, one employer will be deemed primary and one will be secondary.  The employee’s worksite which the employee is assigned and reports to is the primary employer.  However, if the employee has physically worked for at least one year at a facility of a secondary employer, the employee’s worksite is that location.

Under the FMLA, the primary employer is responsible for following and administering the FMLA for the employee including 1) providing required notices, 2) providing FMLA leave, 3) maintaining group health insurance benefits during the leave, 4) restoring the employee to the same job or an equivalent job upon return from leave, and 5) keeping all records required by the FMLA with respect to primary employees.

The secondary employer, whether an FMLA-covered employer or not, is prohibited from interfering with a jointly employed employee’s exercise of or attempt to exercise his or her FMLA rights or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA.  The secondary employer is responsible in certain circumstances for restoring the employee to the same or an equivalent job upon return from FMLA leave and they must keep basic payroll and identify employee data.

Change can be challenging and demanding.  At WageWatch our compensation consultants can assist with your organization’s compensation needs and help ensure your wages and salaries are supporting your company’s business strategy and objectives.  In addition to our PeerMark  Salary Survey for over 100 local lodging markets in the U.S. and Canada, we offer a National Benchmark Salary Survey. With over 9,000 hotels and 200 casinos in our database, WageWatch’s hotel and gaming salary surveys are the most comprehensive surveys available to Human Resource professionals. For more information on our services, including consulting, salary surveys, benefit surveys, and custom compensation reports, please call WageWatch at 888-330-9243 or contact us online.