welcome to hr law school
Welcome to HR LAW SCHOOL, a unique resource to help business owners, HR professionals, and employees better understand their rights and responsibilities in the workplace. Click on the drop-down menu under “HR Law School” to access informative videos and written materials to help keep you up-to-date with many important HR and employment laws.
Employee Handbooks
Employee Handbooks help keep business owners and employees “on the same page.”
Employee handbooks are critical in protecting your business and keeping you out of trouble with your employees! Up-to-date policies and procedures can help set the tone for the workplace, ensure you are in compliance with various HR laws, and help your business to grow.
In the most basic sense, an employee handbook is a compilation of the company’s policies, procedures, expectations, and obligations. It explains your expectations of your employees, and also what your employees can expect from you and the company.
A handbook generally lays out company policies on things ranging from leave to discrimination. It explains procedures for employee complaints, reporting harassment, or employee discipline. It also clarifies your obligations as the employer, and the employee’s legal rights. Every employer should have an employee handbook.
What should your employee handbook include?
· At-will disclaimer
· Discrimination, retaliation, and harassment policies
· Employee complaint procedures
· Employee discipline
· Timekeeping and overtime policies
· Standards of conduct
· Non-disclosure agreements and Conflict of interest statements
· Employee benefits
· Leave policies
· Workplace safety and security
Employee handbooks are important to create uniformity within the company. It helps keep all your employees on the same page, following the same set of rules. New employees are able to set their expectations in regard to leave, compensation, benefits, performance, attendance, holidays, training, and more.
A handbook can also save time. Documented policies and procedures save your managers from repeatedly explaining the same information to new employees and can help administration teams run more efficiently. Human Resources and managers can use your employee handbook as a guide or reference manual.
A handbook can help ensure compliance with federal and state laws. It communicates the rights and obligations of employees and demonstrates how your company strives to be compliant with these federal or state regulations. Handbooks should be updated regularly to ensure it is reflective of the applicable law and the company’s mission.
A handbook is also a critical element of a legal defense in a harassment or discrimination claim. By laying out your policies on discrimination and harassment, and your procedures for reporting any instances of mistreatment, you are building legal protections for yourself. A thorough handbook shows that you exercised “reasonable care” towards your employees, and the employee’s signature on the handbook shows that they had the opportunity to familiarize themselves with the procedures, ask questions, and knew whom they could turn to for help.
An excellent employee handbook puts the employer and employees on the same page. It lays out expectations and builds protections for both the company and the employees.
To create a new Employee Handbook for your business, or to schedule a review of your current handbook, contact Employer-Lawyer at (801) 874-4964.
Employee Record-Keeping
Careful record-keeping helps protect both businesses and employees!
Employee Record Keeping
Whether you are a small business or a large enterprise, keeping and organizing employee records is essential. These records will be useful when conducting workplace investigations, proving that your business is in compliance with local, state, and federal statutes, and defending your business from lawsuits. There are three types of document that need to be maintained for every employee. They are personnel, payroll, and medical files.
Personnel
These are documents that are directly linked to the employment of the employee and include hiring documents, employee and emergency contact information, signed acknowledge of employee handbook, identifying information, other onboarding or policy affirming documents, performance reviews, training records, attendance records, job description, training records, disciplinary documents, and termination letters. DO NOT put confidential information such as medical information in this file or I9 right to work in the country forms. Right to work documentation, such as an employee’s I-9, should be kept separately. The EEOC requires that all employers must keep al personnel records for at least one year. If the employee is involuntarily terminated, then the employer must hold onto all employee records for one year from the time of termination. In addition, some documents should be held for longer than one year. These include.
Resumes – keep for one year but there is no requirement for unsolicited resumes
Form I9 – three years from the time of hire or one year after termination (whichever is later)
Performance Reviews – 2 years
Payroll
Documents that involve salary, benefits and other financial awards (such as bonuses), and tax information should be filed under payroll information. This includes time-sheets, direct deposit information, records of additions and deductions from wages, salary history and W4 and W2 forms. According to the Department of Labor, payroll documentation, collective bargaining agreements, and sale and purchase records need to be kept for at least three years. In addition, records regarding wage calculations need to be kept for at least two years. These include timecards, wage rate tables, work and time schedules, and records of additions or deductions from wages. The IRS requires that you keep all tax records for at least four years. These include records of allocated tips, employee copies of W-2’s, copies of tax withholding certificates, and any other documents an employee would use on their taxes. Last, The Employee Retirement Income Security Act (ERISA) requires business to keep all employee records about retirement and benefit plans for at least six years after the termination of the plan.
Medical files
Any records that contain sensitive medical data or requests for accommodation under the ADA should be stored as medical files. These include drug and alcohol test results, emergency contact information, requests for reasonable accommodation under the ADA, workman’s comp history, injury reports as required by OSHA, reimbursements for medical expenses, notes from doctors, and paperwork concerning employee leave under the FMLA. These records should be secured and made confidential so that only authorized personnel can access them. OSHA logs should be kept for five years. All other employee medical records should be kept for an additional three years after the time of termination of the employee.
If you have any questions or concerns about your business’s record keeping direct any questions you have to Employer-Lawyer, PLLC. You can reach us at (801) 874-4964 or spencer@employer-lawyer.com.
Protecting your business
overtime wages
Overtime Wages: Get It Right the First Time!
The Fair Labor Standards Act (FLSA) is the law that establishes the rules for overtime pay to employees. Employers should take special measures to ensure that they are in compliance with the FLSA’s stipulations on how to calculate overtime and how much to pay. Rules stipulated by the FLSA cannot be waived, even if the employer and employee both agree to waive it.
The FLSA requires overtime to be paid to any employee who works over 40 hours in any consecutive seven-day period. The employer may decide which seven day period to use (for example: Monday through Sunday or Sunday through Saturday), but the employer must be consistent with the seven-day period they choose to use. Any time an employee works over 40 hours during a seven-day period they are entitles to overtime, even if it is merely minutes over the 40 hours. The hourly rate for overtime wages is calculated at one and a half times the employee’s normal hourly rate. So, if an employee typically makes ten dollars an hour, they will make fifteen dollars an hour for their overtime hours. Because overtime pay is calculated using a seven-day basis, it is best practice to pay employees every two weeks rather than twice a month. This will make bookkeeping easier and help ensure that the employer’s organization is in full compliance with the FLSA.
Failure to comply with the FLSA can have severe consequences for employers. Employees who have not been paid overtime as required by the FLSA can be awarded back pay for their unpaid overtime, often with interest. In addition, there can be additional damages owed to the employee in the form of liquidated damages, which typically doubles the amount owed by the company to the employee.
If you have any questions about your business’s compliance with the overtime rules of the FLSA please contact Employer-Lawyer at (801) 874-4964.
meal periods and rest breaks
Meal Periods and Rest Breaks:
Neither Federal law nor Utah law actually require employers to provide rest or meal breaks. But as an employer, you may still choose to give your employees breaks. If you choose to give breaks, there are a few things you should know to stay out of trouble with the law:
Rest Breaks
Rest breaks are short, usually about 10 minutes or less. Employees are still on-the-clock during these breaks and must be paid for the full rest break. However, unauthorized extensions of these short breaks do not have to be compensated if you have expressly communicated that the break may only last for a certain period of time.
Meal Breaks
Meal breaks are typically 30 minutes or more. These breaks are off-the-clock, and employees do not have to be paid, as long as they are not required to perform any work duties during this period. If an employee is still required to answer phones, write emails, or perform any other function of their job during this period, they must be paid for the entire meal break period. Additionally, meal breaks typically have no restrictions on where an employee can go. If you require the employee to stay on site during their meal break, they may need to be paid for the break.
Business owners who give breaks but do not follow these guidelines may be liable for two times what would have paid the employee for their break periods. It is important to understand these rules regarding breaks in order to protect your business and your employees!
If you have any questions or concerns about your business’s rest or meal break policies, please contact Employer-Lawyer at (801) 874-4964 or spencer@employer-lawyer.com.
salaried exempt employees
Salaried-Exempt Employees: It’s More Than Just “Salary”!
According to the Fair Labor Standards Act (FLSA), some employees are exempt from being paid overtime wages. All of the exempt positions are salaried positions, but not all salaried positions are considered exempt! The FLSA takes into account the nature of the position when determining whether they are exempt. The first exempt position is for executive employees. These are employees who oversee two or more employees, have authorization to and advise in the hiring and firing of employees, and direct part of the company’s business. The next exception is the administrative exemption. These jobs are positions that involve with management or general business operations of an organization. These are typically office positions. The third exemption is the professional exemption. These are often positions that require advanced training or involvement in creative or inventive endeavors or endeavors that require very specific talent. Examples of these positions are lawyers, actors, and medical doctors. The final exception is for computer positions. These are positions that require an employee to work closely with computers, such as programmers.
In addition to the nature of the work, the FLSA also takes into account the amount of money being paid to the employee to determine whether the employee can be considered “exempt.” As of January 2021, the minimum salary of an exempt employee is $684 a week ($35,568 a year). This does not mean that an employee’s salary cannot sometimes fluctuate, but the employee’s weekly salary must never go below $684 a week. Further, it must also be noted that the minimum salary is not pro-rated if the employee works below 40 hours a week.
If you have any questions regarding whether you or an employee of your organization is a salary exempt employee please contact Employer-Lawyer at (801) 874-4964.
employees vs. independent contractors
Employee or Independent Contractor? Knowing The Difference is Critical!
Businesses can hire employees, independent contractors, or both. Although employees and independent contractors both perform work for the employer, there are important legal differences between the two. For employees, the employer must withhold income tax, Social Security, and Medicare from the wages. This is not the case for independent contractors - they are responsible for paying their own taxes. In addition, independent contractors do not enjoy the protections of federal and state employment and labor laws. For example, they are not entitled to overtime as required by the FLSA and they are responsible for getting their own Workers’ Compensation insurance.
Because independent contractors lack many of the legal protections afforded to employees, federal and state law establishes criteria that must be met to consider a worker an independent contractor. These tests generally look at three areas: behavioral control of the worker, financial control of the worker, and the type of relationship the organization has with the worker.
Under behavioral control, a court will look at the type in instruction given to the worker. If the worker is told exactly where and when to work, given specific training on how to do the job, or put though job evaluation systems, then it is likely that they will be considered an employee. Under financial control, a court will look at what the pay structure for the worker is like. If a worker is paid by the hour, expected to exclusively work for the employer, has their tools paid for by the employer, or is expected to work for the employer for an indefinite period of time, then they are likely an employee. On the other hand, if the worker is paid by the project, takes projects from other employers, and brings their own tools then they are likely an independent contractor. When looking at the relationship between the employer and the worker, courts will consider how the two parties perceive the labor being done. If a worker’s labor is the type of labor that is a regular part of the company, done on an indefinite basis, or has benefits such as insurance, then the worker is likely an employee.
If an organization has been treating its workers as independent contractors when they are actually employees, the business can be found liable for significant damages. This is called worker “misclassification” and may result in payments for overdue insurance premiums ant taxes, unpaid overtime wages, and steep penalties and fines.
If you have questions about the proper classification of workers, feel free to reach out to Employer-Lawyer at (801) 874-4964.
harassment law
Keep Your Business (and Your Employees) Safe!!
It’s important for everyone to feel safe when they go to work. Federal law prohibits harassment in the workplace based on a person’s race, color, national origin, religion, or sex (including gender identity and sexual orientation).
Harassment can be in the form of either a hostile work environment or a quid pro quo. A hostile work environment occurs when harassment against an employee becomes so severe or pervasive that it creates a hostile or abusive environment. Quid pro quo harassment is typically limited to sexual harassment and happens when a supervisor or other person of authority in the company requests sexual favors in exchange for some employment benefit.
It is also illegal under federal law to discriminate against an employee or potential employee based on his or her race, color, national origin, religion, sex, age, or disability. This includes treating an individual differently because of a personal bias as well as having a facially neutral policy that has a discriminatory impact on a particular group of people.
To make sure all their employees feel safe and comfortable at work, and to avoid putting their companies at risk of lawsuits, it is important that employers create workplaces that are free of harassment and discrimination. There are a few things that all employers should do to prevent harassment and discrimination, including:
- Creating and enforcing anti-harassment and anti-discrimination policies
- Implementing reporting and discipline procedures to respond to any violations of those policies. These should include multiple available methods of reporting harassment, a requirement to investigate all complaints, and proper discipline of offenders
- Staying up to date on the continually changing harassment and discrimination laws
- Regularly reviewing company policies and practices to make sure no individual or group is unintentionally treated unfairly
- Training employees about harassment laws
Employers should also know that it is illegal to retaliate against an employee for raising a complaint or participating in an investigation of wrongful behavior.
Harassment law is simple on its face but can get very complicated in practice because of the nuances of each unique situation. That’s why it’s so important to seek legal advice early and often. A lawyer can guide companies through necessary steps to avoid harassment and discrimination at their firms, and can help employers and employees handle situations where harassment or discrimination do happen.
To schedule a consultation to review company policies and practices, or to get help if you or your company are involved in a harassment, discrimination, or retaliation claim, call Employer-Lawyer at (801) 874-4964.