On the heels of several natural disasters across the nation and with winter weather just around the corner, at least for folks in northern climes, now’s a good time to prepare for the inevitable questions related to time off that inclement weather inevitably brings. Of course it’s vital to avoid running afoul of the Fair Labor Standards Act (FLSA) so bear in mind the disparate legal requirements related to exempt vs. non-exempt employees.
Staff should always be considered non-exempt unless they meet a series of salary and duties tests for one of the exemptions laid out under the FLSA. More information is available on the US Department of Labor (DOL) Wage and Hour Division’s compliance page. Nonexempt employee protections under the FLSA include being paid at least at the prevailing federal or state minimum wage rate, whichever is higher, as well as being paid at an overtime rate of one and one half times the regular rate of pay for any work hours that exceed 40 in one workweek.
But keep in mind that the FLSA does not require employers to provide paid sick, vacation, holiday or personal leave. Of course if you do have policies providing such leave, you need to follow them. There’s nothing worse for an employer than having policies and not following them. That said, for nonexempt staff, the FLSA says that an employer is not precluded from lowering an employee’s hourly rate, provided the rate paid is at least the minimum wage, or from reducing the number of hours the employee is scheduled to work. And the FLSA does not require employers to pay non-exempt staff for hours they have not worked.
So, when inclement weather hits and you close your workplace, you are permitted under the law (assuming you don’t have a policy in place to the contrary) to deduct pay from non-exempt employees’ paychecks commensurate with the reduced work time. Likewise, if you keep your workplace open but a non-exempt staff person does not make it in due to the weather, you are allowed by law to deduct those hours not worked from their pay, again personnel policy to the contrary notwithstanding. Note that if you do make such deductions from pay, be sure to apply them to non-exempt staff across the board to avoid discrimination claims. And there’s one more caveat: in today’s plugged in world, employees often perform work remotely from personal computers and electronic devices such as smartphones. Even if they are just checking email, you must count such work done remotely as time worked.
The paragraph above outlines what is permitted under the FLSA, but there may be lots of reasons for employers to choose to be more generous and pay non-exempt employees for time off related to a disaster or inclement weather, especially if the loss of work hours is based on the employer’s decision or on severe and unusual circumstances beyond employees’ control. Important issues to consider include employee morale, retention, loyalty and engagement as well as the culture, core values and mission of your organization.
What about exempt staff? You are not permitted to reduce an exempt employee’s predetermined weekly pay without jeopardizing their exempt status except under limited circumstances. However, you are permitted to reduce their accrued sick, vacation or other leave bank, even if the reduction is less than a full day and even if the absence is directed by the employer due to lack of work; however, the exempt employee must still be paid their predetermined weekly salary in any week in which any work is performed. Note that the full salary must be paid: even if the leave bank is exhausted; if it becomes or goes further into the negative; even if the employer does not have a bona fide benefits plan at all; and even when the leave is required by the employer due to inclement weather according the the DOL Wage and Hour Division Opinion Letter FLSA2005-41.
So take some time now to establish the leave policies your organization needs or to review those you already have in place, including inclement weather and disaster policies. Make sure they are in compliance with the FLSA and that they support your culture, goals and mission.
Employees have a natural, perhaps downright all-American, tendency to think they have a right to say anything they want, especially when it’s on their personal computer during their personal, non-work time. But it’s not that simple, for employees nor for their employers.
Section 7 of the National Labor Relations Act (NLRA) protects an employee’s right to “protected concerted activity.” This means that employers are precluded from retaliating against employees because they discuss wages, benefits and terms and conditions of employment, whether at the water cooler or on their personal Facebook page. This doesn’t give free rein to employees, however, as gratuitous griping is not considered protected activity. One further point that is key for employers to understand: the NLRA protection applies to all employees, union and non-union members alike.
Here are a couple of cases filed with the National Labor Relations Board (NLRB) to illustrate the concepts:
(1) A worker is terminated for posting pejorative comments about her supervisor on her Facebook page. Her remarks included the complaint that the supervisor didn’t allow her to have union representative assistance when responding to a customer’s complaint about her work. Fellow workers posted supportive comments which led to further negative remarks being posted by the employee. The employer found out and terminated her based on their social media policy which prohibits employees from making disparaging remarks about the employer or fellow employees.
The NLRB ruled that the employee’s postings constituted protected concerted activity, that the disparaging remarks were intertwined with discussion about working conditions.
(2) In a case against Wal-Mart, an employee was likewise terminated for making disparaging remarks about his supervisor. The Individual complained about “management tyranny”; this time the NLRB deemed the comments to be griping, which is not considered protected activity.
These distinctions can be a bit murky so be extremely careful if you believe you need to terminate someone based solely on use of social media such as a tweet or Facebook posting. Get qualified legal advice first to make sure you are not in violation of the NLRA.
Do you friend on Facebook? Are you linked in via LinkedIn? Do you tweet on Twitter? If you said yes to any of these, you join millions of others in the ever expanding, ever changing world of social media. If you said no, or even if you don’t know exactly what these things are or how they work, chances are you will encounter them soon in your workplace, if not personally.
The power of social media cannot be underestimated. Facebook helped fuel the Arab Spring and BlackBerry Messenger usage is propelling current rioting in cities across the U.K.; so much so, in fact, that the Prime Minister is calling for its suspension to quell the violence.
Organizations are embracing social media for a host of business purposes: sales, marketing, PR and recruiting to name a few. Even those that don’t due to small size or mere reluctance are bound to have to pay attention to social media simply because their employees already are. To help you manage the issues social media usage creates for your organization, HRSentry provides its subscribers with a sample social media policy. There is also a webinar taking place August 18th at 2:00 pm EDT to help you learn more about what various social media are and the myriad effects on the workplace. HRSentry webinars are always free for subscribers.
So don’t keep your head in the sand. With its ever growing power, you need to understand how social media can affect you, your employees and your organization.
Article contributed by Kyle Lagunas, the HR Market Analyst at Sofware Advice:
HR is shifting its focus away from its traditional administrative functions and towards strategically growing and developing talent in the workforce. This trend—what analysts are calling strategic HR—is due largely in part to advancements in HR technology. The adoption of cloud-based software solutions has made this transition possible for organizations large and small. For leaders interested in developing a more valuable workforce, it is important to understand what, exactly, strategic HR is.
In broadening the scope beyond their traditional functions, HR professionals are taking on new roles as organizational advocates, talent coaches and workforce consultants. This hybrid of HR functionality oversees three core strategic HR functions:
Talent Management focuses on acquiring, on-boarding, and developing talent through employees’ entire life-cycles within organizations.
Learning Management focuses on managing the process of developing hard and soft skills, monitoring certifications, and rolling out training courses.
Workforce Management focuses on processes managers rely on to manage daily staffing tasks such as time tracking and shift scheduling so they can focus on big picture operational needs.
The adoption of web-based HR software has been a key driver in the development of strategic HR. Solutions focused on best practices involve both managers and employees in important processes like on-boarding and performance reviews. By automating administrative HR functions, organizations can take a strategic perspective on big-picture practices such as hiring better people and improving talent effectiveness.
Richard Vosburgh, VP of Talent & Organizational Effectiveness and Chief Talent Development Officer at KEMET Electronics, advocates the value of both the “essential and the transformational” functions of HR. Organizations that have mastered both the essential and transformational have seen a major impact on their organizational effectiveness. In 2007, a study conducted by The Hackett Group, HR Best Practices, found that organizations with “World Class HR” lowered labor costs, increased HR efficiency and drastically reduced turnover.
Impact of Strategic HR Graph
When taking the first steps towards implementing strategic HR, Vosburgh suggests leveraging people resources in your organization with what he calls “dual-hatting projects.” For example:
Assign your HR manager to develop an internal branding and company culture campaign.
Work closely with the controller to develop realistic and informed hiring and growth strategies.
Ask your hiring managers create a section in the application process specifically suited to their division.
Organizations that are serious about transitioning into strategic HR should be prepared for some growing pains. Safeguard yourself and your organization, and take time to put in your due diligence now. If you do your homework, research best practices and compare software to find what best fits your unique organization, you can ease this transition. Establishing an effective, strategic HR framework that can grow with your organization over time is no small task, but it’s undoubtedly worthwhile.
Join us on Thursday July 21, 2011 from 2:00 – 3:00p.m. for a webinar titled The Fair Labor Standards Act. The FLSA affects and needs to be understood by every employer. This webinar will visit the most important facets including exemptions, overtime calculations and some recent additions to the law. Avoid hassles and fines by making sure you are in compliance!
