All posts by stu

Company Culture, Compliance, Discrimination, EEOC, Federal Contractors, Harassment, Training

How to Strengthen and Improve Your Harassment Avoidance Program

Harassment prevention is a critical aspect of any workplace culture. In April, the U.S. Equal Employment Opportunity Commission (EEOC) issued a technical assistance document titled “Promising Practices for Preventing Harassment in the Federal Sector,” which provides practical tips for preventing and addressing harassment within the federal civilian workforce. Private sector employers can review the guidance and use it to strengthen and improve their harassment avoidance program.

The “Promising Practices” document provides recommendations in four main areas: 1) leadership and accountability, 2) comprehensive and effective anti-harassment policy, 3) effective and accessible anti-harassment program, and 4) effective anti-harassment training.

  1. Leadership and Accountability: Establish and maintain an effective EEO/Harassment program and demonstrate commitment and accountability from company leaders. Key actions may include: adequate funding for the program, access to neutral staff to assist with investigations, a commitment to complete investigations within 10 days, conducting periodic climate surveys and considering the use of an anonymous concern line for employees.
  2. Comprehensive and effective anti-harassment policy: Have a comprehensive policy that clearly defines harassment, outlines the types of conduct that are prohibited, and provides a reporting mechanism for employees who experience or witness harassment. Key items for your policy include: covering applicants and employees, assure that bullying, intimidation, and stalking are referenced and not be tolerated, being easy to understand (limited legalese), covering social platforms and time limits for concluding investigations.
  3. Effective and accessible anti-harassment program: Make sure all employees understand the policy and know how to report incidents of harassment. Clear reporting and complaint procedures to ensure the company properly respond to harassment allegations. Key actions may include: anonymous methods for reporting, creating a well-documented complaint tracking system, analyzing data for trends and patterns and training employees on the difference between EEO policy and non-harassment policy.
  4. Effective anti-harassment training. Provide regular training to all employees on harassment prevention, including what constitutes harassment, how to report it, and the consequences for engaging in harassing behavior. Offer training to employees as well as supervisors, provide “real life” examples in the training, have a question and answer portion to the training, tailor training to your workforce, and use smaller groups to enhance engagement.

By reviewing the EEOC’s recommendations for federal agencies, your company can learn of ways to create a workplace culture that is safe and respectful for all employees and ensure that your company is taking proactive steps to prevent and address harassment.

Compliance, E-Verify, Hiring, HR Compliance, I9 Form

Florida’s New E-Verify Rule Starts July 1, 2023

Currently, employment verification (I9 form) is required by all employers within 3 days of hire to ensure the employee is authorized to work in the United States. E-Verify, an online tool operated by the U.S. Department of Homeland Security, allows employers to electronically verify employment eligibility after having completed the I-9 form. Currently, E-Verify is mandatory in Florida for public employers, as well as private employers who contract with local and state governments, including public colleges and universities.

On May 10, Florida’s Governor Ron DeSantis signed SB 1718 into law. This new Florida law, effective July 1, 2023, creates a new requirement for all private employers with at least 25 employees to use E-Verify. There will also be an increase in penalties for noncompliance and for those employers who knowingly hire undocumented workers. Here are several takeaways for employers regarding this new law:

  • Private employers with 25 or more employees must utilize E-Verify for employees hired on July 1, 2023 and thereafter. If the records do not match, the e-verify system will notify of a mismatch and an employer must give notice to the employee (no match process). The employee then has 10 days from the mismatch to notify the employer if they have resolved the situation. If there is no resolution, the eligibility to continue employment ceases.  
  • Employers must keep a record of the documentation for at least three years. Employers required to use E-Verify must also certify compliance annually and when making contributions to the state’s unemployment compensation system.
  • Employers that use the E-verify system establish a rebuttable presumption that they have not knowingly employed an unauthorized worker. If the e-verify system is down for more than three days and the employer cannot complete the process in a timely manner, this presumption can be maintained by completing an I-9 form and taking a screenshot each day showing the system was unavailable (and retaining any official notice or communication about the systems being down.

The penalties for noncompliance will take effect July 1, 2024 (one-year delay in enforcement). The Department of Economic Opportunity will give 30 days’ notice to fix any non-compliance. If the business fails to use E-Verify three times within any 24-month period, the DEO will fine $1,000 per day until proper proof of non-compliance is resolved. The first violation puts the business on a one-year probation period. If requirements are not followed, it could result in revoking state-issued licenses.

Background screening, CFPB, Compliance, Fair Credit Reporting Act, Hiring

Time to Update your FCRA Summary of Rights Notice (April 2023)

On March 17, 2023, the Consumer Financial Protection Bureau (CFPB) published an updated version of the publication entitled, “A Summary of Your Rights Under the Fair Credit Reporting Act,” which is also called the “Summary of Consumer Rights.”  The latest version replaces the original version that was published in 2018. There are English and Spanish versions of the Summary available on the CFPB’s website.  Employers and consumer reporting agencies (CRAs) must provide the new summary to applicants and employees to comply with the federal Fair Credit Reporting Act (FCRA). correct contact information for various federal agencies. 

What has changed? The new Summary of Consumer Rights notice makes some minor language changes and also corrects the contact information for several federal agencies. Although these changes are small, the new notice must be provided to employees and applicants during background checks and during the adverse action process to maintain compliance with the FCRA.

What is the deadline to use the new Notice? This new rule went into effect as of April 19, 2023, though there is a grace period for employers and credit reporting agencies until March 20, 2024. It is not necessary to provide the updated notice for anyone who has been given the prior notice.

Background screening, Compliance, Florida rules, Hiring

How MIYA’s Law Impacts Florida Background Screening

Named after Miya Marcano, an Orlando College student that was murdered in an apartment complex by a maintenance worker, Miya’s law is a new Florida Statute that is aimed to improve residential tenant safety by imposing new legal duties on Florida landlords and property managers. Effective January 1, 2023, landlords of public lodging establishments (as defined in 509.242(1)(d) and non-transient and transient apartments must perform a thorough background check on any potential apartment complex employee as a condition of employment.

Under Miya’s law (FL Stat. 83.515), the required background screening must be performed by a consumer reporting agency in accordance with the federal Fair Credit Reporting Act (FCRA). The screening must include a search of criminal history records and sexual predator and sexual offender registries in all 50 states, and the District of Columbia. Landlords have the right to disqualify an applicant if they have been found guilty, convicted or entered a plea of guilty/nolo contendre to a criminal offense that involves the disregard for the safety of others (felony or misdemeanor in the first degree in Florida), or a criminal offense in another jurisdiction that involved violence (including but not limited to murder, sexual battery, robbery carjacking, home invasion, and stalking). Disqualification can occur for crimes committed in another state if they would be a felony or first-degree misdemeanor if committed in Florida.

In addition to the background check requirement, there are some additional changes to landlord and tenant rules. A written log accounting for the issuance/return of keys and a written policy and procedure for the issuance and return of keys (and storage and access to unissued keys) are mandatory for apartments (transient and non-transient). In addition, the reasonable notice period that the landlord of residential tenancies must give to tenants for repairs is lengthed from 12 to 24 hours. And, the reasonable time for making repairs is between 7 am and 8 pm.

Questions about background checks? Consultstu works with clients to perform criminal checks using a national consumer reporting agency that complies with FCRA mandates (including the adverse action process). We can perform criminal background screening, drug testing (a nationwide network of collection labs), MVRs, as well as educational and employment verifications.

Bonuses, Employee benefits, Employee Referral, Engagement, Human Resources, Recruiting, Retention

Create a Supercharged Employee Referral Program

Recruiting has been tough in recent years. We have many clients who successfully use an employee referral bonus program to supercharge their recruitment of talent. Employee referral programs accomplish three important objectives: (1) it engages employees in the business and adds excitement; (2) it pays current employees (instead of recruiting companies) for qualified leads; and (3) it expands the company recruiting reach to passive job seekers. Here are some steps to create an effective employee referral program:

  • Define the program’s objectives: Before creating an employee referral program, it is essential to understand what you want to achieve with it. Your objectives may include reducing recruitment costs, improving employee retention rates, exciting employees and finding good candidates.
  • Determine rewards and incentives: Decide on the type of rewards or incentives you will offer to employees who refer successful candidates. Monetary incentives (bonus or cash), or non-monetary (paid day off) or a gift card. Set the value appropriately – we have clients using $100 for entry level workers to $3,000 for highly paid professionals. Make the reward worth the effort of referring qualified candidates.
  • Develop a communication plan: Once you create the program objectives and incentives, write a communication plan (email, flyer etc..) to inform employees about the referral program. Use multiple channels, including emails, social media, and team meetings, to spread the word.
  • Create referral guidelines: Establish clear guidelines for the referral process. Outline the positions that are open for referral, the basic qualifications required and how the referral process works. Employees need understand how to refer candidates and what information they need to provide (include the employee’s name on the application, or with the shared resume).
  • Monitor the program: Track the number of referrals received, the success rate of referrals, and the overall cost-effectiveness of the program. Regularly review the program’s performance and make necessary changes to improve its effectiveness. We have a client that receives 50% of its new hires through the referral process!
  • Publically recognize and reward successful referrals: Recognize employees who make successful referrals in a public way. Celebrate their achievements and make sure they feel appreciated for their contributions to the company’s success. Company communications and social media are great ways to show appreciation to those employees.
  • Continuously improve the program: Keep improving the employee referral program over time. Solicit feedback from employees and candidates to identify areas for improvement and make changes accordingly.

By following these steps, your company can create a supercharged and effective employee referral program that will bring qualified candidates to your door and also help you retain top talent.

Compensation, Employee Handbook, Employee Policies, HR Compliance, Salaried employees, Wage and Hour

PTO Can be Docked from Salaried Employees

Paid time off is a fringe benefit and is not considered part of a worker’s salary ruled a federal appeals court on March 15, 2023. In a case brought by employees (nurses, physical therapists and social workers) at Bayada Home Health Care, the judges concluded that the company can take away paid leave when salaried workers do not meet productivity quotas. The Philadelphia-based 3rd U.S. Circuit Court of Appeals unanimously ruled that Bayada Home Health Care Inc did not violate federal wage law by docking salaried employees’ paid time off, or PTO, when they did not work required weekly hours. This was the first time that an appellate court ruled on whether docking PTO from salaried employees causes them to lose their exemption from overtime.

While a salary is a fixed amount of compensation paid out at regular intervals, paid time off is a fringe benefit that has no effect on a worker’s wages and can be paid irregularly, such as when an employee leaves a company. The court did not agree with the employees’ argument that deducting PTO when they did not reach a weekly productivity quota, meant that they were paid based on how much they worked and were not salaried employees exempt from overtime pay under the federal Fair Labor Standards Act. This decision affirmed a federal judge’s 2021 ruling for the company. (Higgins v. Bayada Home Health Care Inc., No. 21-3286 (3d Cir., March 15, 2023).

As a refresher, employees can be exempt from overtime if they have exempt duties and are paid on a salary basis. Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. Read more about the Salary Basis rules.

Compliance, Employee Policies, General HR Questions, Non-complete Agreements

FTC Proposes Rule to Ban Non-compete Clauses: What Happens next?

In January, the Federal Trade Commission (FTC) proposed a new rule that would ban employers from imposing noncompetes on their workers, a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses. By stopping this practice, the agency estimates that the new proposed rule could increase wages by nearly $300 billion per year and expand career opportunities for about 30 million Americans. Read more from the FTC.

The FTC is seeking public comment on the proposed rule, which is based on a preliminary finding that noncompetes constitute an unfair method of competition and therefore violate Section 5 of the Federal Trade Commission Act. The FTC’s proposed rule would generally prohibit employers from using noncompete clauses. Specifically, the FTC’s new rule would make it illegal for an employer to:

  • enter into or attempt to enter into a non-compete with a worker;
  • maintain a noncompete with a worker; or
  • represent to a worker, under certain circumstances, that the worker is subject to a non-compete.

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect. The proposed rule would generally not apply to other types of employment restrictions, like non-disclosure agreements. However, other types of employment restrictions could be subject to the rule if they are so broad in scope that they function as non-competes.

If you are interested in reading more about what might happen if this regulation goes into effect, and how employees will need to respond, read these FAQs.

Compliance, Concerted Activity, Downsizing and Restructuring, Employee Rights, NLRB, Section 7 Rights, Termination

Is it Illegal to Use a Non-Disparagement Clause in Severance Agreements?

Recently, the Biden Administration’s National Labor Relations Board (NRLB) reversed well-established principles and ruled that confidentiality and non-disparagement clauses in severance agreements violate Section 7 of the National Labor Relations Act (the NLRA) if they restrict workers from engaging in protected activity. For instance, the agency concluded that protected activity includes: criticizing employer policies with coworkers and former coworkers; discussing severance, wages, and other terms and conditions of employment; and cooperating in NLRB investigations. This new position reverses the precedent under the previous administration and long-established historical principles. The McLaren-McComb decision immediately applies to employers.

The ruling involved a hospital employee that was laid off with 11 other employees. They were all given a severance agreement that contained standards release of claims, and also (1) a confidentiality clause prohibiting the sharing of the terms of the Severance Agreement with anyone other than a spouse or professional advisors, unless compelled to do so by a court; and (2) a non-disparagement clause that prohibited the employee from disparaging the hospital or affiliated persons. These are very common clauses in severance agreements and were written broadly without any limiting language.

According to the NLRB, the language was illegal because it violated the National Labor Relations Act (NLRA) because it forced the employee to agree to unlawful restrictions, in order to get the monetary benefits. Section 7 of the NLRA states that non-supervisory employees have the right to join together to advance their interests as employees and engage in “concerted activity,” which is not limited to unionizing activities and could include discussing wages or other workplace concerns or opposing unlawful conduct in the workplace.

Important takeaways:

  • The decision applies to union and non-union employers.
  • Severance agreement language should be adjusted to allow an employee to cooperate with the NLRB, discuss wages, and exercise any other rights protected by Section 7.
  • The decision (and Section 7 rights) do not apply to supervisors. Supervisors include individuals with the authority to hire, discharge, direct, or take certain other actions with respect to other employees, through the use of independent judgment.
  • The decision applies to all types of agreements, including those that were completed prior to the date of the McLaren Macomb decision.

Read more here.

Compensation, Compliance, Department of Labor, Exempt Employee, HR Compliance, Salaried employees, Wage and Hour

“Highly Compensated Employee” Exemption Requires Payment on a Salary Basis

A highly-paid offshore tool pusher worker sued Helix Energy Solutions because he was not paid overtime. He was considered exempt under the “highly compensated employee” exemption (Wage and Hour law) but was paid on a day rate, not a salary. In late February, the Supreme Court decided that the worker must be paid overtime because the exemption required that an employee be paid on a “salary basis”. Day-rate compensation plans do not qualify for the exemption. This rule applied even though the employee received day-rate compensation that netted him over $200,000 per year.

The Fair Labor Standards Act (FLSA) regulations contain a special rule for “highly compensated” employees who are paid total annual compensation of $107,432 or more. A highly compensated employee is deemed exempt under Section 13(a)(1) if:

  1. The employee earns total annual compensation of $107,432 or more, which includes at least $684* per week paid on a salary or fee basis;
  2. The employee’s primary duty includes performing office or non-manual work; and
  3. The employee customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.

Additionally, the weekly salary amount of $684 must be paid in its entirety. Employers may not use nondiscretionary bonuses and incentive payments (including commissions) to satisfy any portion of the weekly standard salary level for HCEs.

The Supreme Court concluded that the day rate did not satisfy the salary basis test, and the employee was entitled to overtime because a day rate is not a fixed salary paid regardless of the amount of time worked or pay received.  Although there are some very limited circumstances under which an employee can receive a “day rate” and still satisfy the salary basis test, for those exceptions to apply, there must be a pre-determined, minimum amount of pay, and a reasonable relationship must exist between the guaranteed amount and the amount actually earned.  The easiest solution to avoid problems is to stop using the day rate method and put employees that satisfy the duties test of an overtime exemption and put them on salary.

300 Log, Employee Injury, HR Compliance, Injury Statistics, ITA, OSHA, Record Keeping, Safety

OSHA Form 300A Posting Starts February 1 and Electronic Submission is due by March 2

Covered employers (having more than 10 employees at any point in 2022) are required to post the Occupational Safety and Health Administration (OSHA) Form 300A (Summary of Injuries) from February 1 through April 30 unless their industry qualifies as an exempt low-risk industry. The employee count is based on the number of employees in the entire company. Employers are not required to create OSHA injury and illness records for any establishment classified in the following North American Industry Classification System (NAICS).

All covered employers are required to post Form 300A even if they didn’t have any recordable incidents in 2022. Recordable incidents are required to be maintained on the OSHA Form 300 Log of Work-Related Injuries and Illnesses. OSHA Form 300A must be signed (and certified) by a company executive and posted in a conspicuous location for employees and where other important notices are customarily posted. OSHA records must be maintained at the worksite for at least five years.

Electronic Reporting: Employers must submit their 2022 Form 300A data to OSHA if they have 250 or more employees or have 20–249 employees and are in certain high-risk industries. Employers must send this data electronically, using OSHA’s online Injury Tracking Application (ITA). The deadline to submit the report is March 2, 2023.

On March 30, 2022, OSHA published a new rule to improve the Tracking of Workplace Injuries and Illnesses that would require establishments with 20 or more employees, in certain high-hazard industries to continue to electronically submit Form 300A Annual Summary information once a year to OSHA. Establishments with 100 or more employees in the highest-hazard industries to submit Form 300 Log and Form 301 Incident Report information once a year to OSHA. And, establishments with 250 or more employees, not in designated high-hazard industries, would no longer be required to electronically submit recordkeeping information to OSHA.

Update: The OSHA Injury Tracking Application (ITA) transitioned its login procedure to the public’s one account access to government applications, Login.gov. All current and new account holders must connect their ITA account to a Login.gov account with the same email address to access the application for the 2023 collection of Calendar Year 2022 Form 300A data.

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