Category Archives: Compliance

Why You Should Have Job Descriptions

While there is no “law” that requires that an employer has set job descriptions, writing job descriptions is an important step in planning your staffing programs. They form the foundation for many important processes such as job postings and recruitment. Here’s how it will pay off for your business.

Cover Your Company, Legally

As an example, for remaining in compliant with the ADA, you’ll want to make certain that the description of the physical requirements of the job is accurate down to the offer letter.

A Useful Communication Tool

Aside from any absence of legal reasons to have one, practical reasons weigh strongly in favor of having them. For example, job descriptions can be useful communication tools to tell employees exactly what tasks you expect them to perform. Job descriptions may also address quality or quantity of performance standards, or even work rules that apply to a particular job. Without such clear communications, employees may not perform to your expectations.

Find the Right Fit

Job descriptions can help identify particular skills or abilities that are necessary for a position or the environmental pressures that apply to the position. A good job description tells the applicant what the position may involve or require. After reading the job description, some applicants may decide that they are not a good fit for the position or are not interested in it. If an applicant withdraws his or her application, then a prospective employer cannot be held liable for any “adverse action” under any applicable laws.

Guide the Interactive Process

Some state or federal laws require reasonable accommodations for qualified individuals with disabilities. Job descriptions can help with the interactive process that such laws require. A job description serves as a starting point for what the employer believes to be the essential job duties. The applicant or employee then must identify which of the listed duties he or she cannot perform.

Once those duties are identified, the employer and individual with a disability can begin an interactive dialogue about what accommodations may help the individual to perform those duties without being an undue hardship on the employer or without creating a direct threat to the individual or others. A job description can also be helpful in soliciting the advice of professionals such as physicians, chiropractors, counselors or rehabilitation therapists about whether the individual can actually perform a particular job.

Describe Legitimate Minimum Qualifications

If a job requires a particular certification, such as a commercial driver’s license, a particular degree, or professional designation, list it in a job description. Similarly, if a negative drug test is required before starting or continuing work, that should be stated in the job description.

Another objective, minimum qualifications can be listed as well, including such basics as the need for good attendance and the ability to work well with others. Then, if a person seeks a position and does not possess the required certification or qualifications, you have a legitimate, nondiscriminatory reason for not placing the person in the job.

Justify an Employee’s Exempt Status

Job descriptions will not, by themselves, determine whether a person should be exempt or nonexempt under applicable wage and hours laws. A job description must first accurately reflect the duties of a particular position. In addition, other elements of the applicable exemptions must also be present with respect to each individual worker to qualify as exempt.

But if you claim a person is exempt from minimum wage, timekeeping and overtime requirements under the “executive” exemption to the Fair Labor Standards Act, the job description should state that the employee manages a “recognized department or subdivision” of the company and regularly supervises at least two or more full-time equivalent employees every week. Other managerial duties should also be referenced in the job description.

Similarly, for those employees that you are attempting to qualify as exempt under the “administrative” exemption, the job description should state that the employee “regularly exercises independent judgment and discretion about matters of significance” or words to that effect. Again, describing duties that involve such independent judgment and discretion, such as “negotiates” or “decides,” would also be helpful.

Do a great job of describing what you expect, and you have a greater chance of getting exactly what you want from your team members. The ROI is up to you.

2019 Labor & Employment Law Update for California Employers

california flag in from of state capital building

California Governor, Jerry Brown, recently signed into law several bills that will have a significant impact on California employers’ workplace obligations. Effective January 1, 2019, the new laws will restrict nondisclosure agreements and certain settlement agreements covering harassment and discrimination claims.

These changes significantly expand harassment training obligations (including for employers of under 50), require female quotas on California-headquartered boards of directors, and potentially require updating lactation accommodations.

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New 2019 Affordable Care Act Guidelines and Their Effects on Businesses

Magnifying glass over Affordable Care Act policy and business paperwork

Laws change all the time and it’s important for employers to stay up to date on employment-related news as they come along. The Affordable Care Act (ACA) has seen annual changes since it began nearly a decade ago. The new year 2019 is no different, especially since the tax reform act from 2017 featured a few ACA changes that take effect in 2019.

Companies must keep track of these changes in the ACA law or face fines, penalties or even worse. Here are a few major changes to look out for in relation to the Affordable Care Act in 2019:

Companies with 50+ full-time employees must offer affordable health coverage

Requiring that health coverage is offered to employees at large businesses has been a goal of the Affordable Care Act since the start. In 2018, the rule went into effect that requires companies with 50 or more full-time employees to at least have health care offered to them by their employer. This rule goes unchanged for 2019.

While affordable care must be offered, and the plans must be of high enough quality to fulfill the ACA’s coverage requirements, employees are not required to accept.

However, most employees do accept an offer of coverage, if for no other reason than to avoid the tax penalty for going without coverage. But that changes in 2019 as well.

The individual mandate for healthcare has been suspended

Up until now, if an individual did not carry ACA-approved healthcare, they would be charged an extra tax come April 15th. This included anyone who had coverage that did not qualify for ACA, as well as anyone who lacked coverage for any amount of time during the year.

However, in 2019, this mandate has ended. Now if an individual chooses to go without coverage, they will not be penalized for doing so. This could affect employers as they may see a decline in employee enrollment in the company’s group plans.

The health insurer tax is suspended again

The Health Insurer Tax is a fee placed on healthcare providers based on the premiums they brought in throughout the year. In 2017, the fee was suspended, but it was brought back in 2018. Now it is suspended again for 2019.

The hope is that the health insurance companies will be able to control the cost of premiums now that they do not have to pay this extra fee, which could lead to better rates for employers and employees.

The affordability threshold has risen to 9.86%

In order for there to be affordable care, there must be a definition of the term “Affordable”. According to the law, the lowest-cost self-only coverage option made available to employees cannot exceed 9.86 percent of an employee’s household income.

For example, plans that use the Federal Poverty Line for affordability can’t charge more than $99.75 per month to their employees who choose to sign up for a health plan.

These are the major changes that could have an impact on many businesses around the country. Be sure to consider how these changes will affect your organization when budgeting for the next year.

The Risk in Googling HR Issues

person chancing it and taking a risk

If you do any work in HR, chances are you have used Google to research a variety of HR issues at some point. Googling for the occasional form or broad level question isn’t a bad thing, but if you are someone who’s uncomfortable with uncertainty, it’s best to avoid the practice altogether.

Information on the internet can be unreliable and organizations should avoid googling advice about issues that could have serious legal consequences. Know who you are dealing with before you trust their information.

Risks of using the internet for HR guidance can include:

  • Source Credibility– who is providing this information? Are they professionals in the HR field.
  • Accuracy– is the information provided correctly for your state? Are the documents the most recent and up-to-date ones available?
  • Soapboxes – Was this put online as part of a website trying to push a political or other agenda?
  • Phishing– Websites posing to be from more reputable organizations, that are trying to collect your personal information.
  • Hoaxes – is this site trying to deliberately mislead you with erroneous information?

This practice is simply NOT productive. There is far too much contradicting or risky information available. These issues can be costly and potentially litigious, exposing you to serious penalties, fines, and consequences. It’s imperative that you turn to a professional.

When you use a professional HR resource, like CorpStratHR, you will be communicating with trained HR professionals who can give you personalized advice and consultation. They can assist with a variety of HR topics, including Compliance, Employee Relations, building an employee handbook, harassment training, and much more.

CorpStrat can help businesses with Human Resources consulting with different levels of services. CorpStratHR On Demand provides unlimited access to a dedicated HR Consultant for questions about policy, procedure, and compliance.

CorpStratHR pro and plus provides the benefits of our HR on Demand services, plus unlimited employment law consulting, employee dispute resolution, an online training library, legal mediation & HR investigation assistance, and on-site HR support.

Have questions about the best HR resource for you? Contact CorpStrat today.

team helping business grow

Employment Laws Every Growing Organization Should Know About

team helping business grow

Periods of growth are particularly exciting for small and midsize businesses, but they also bring new HR challenges. Along with adding employees—which may change the feel of your culture as well as your floorplan—your organization may become subject to federal and state laws that take effect once you have a certain number of employees.

Most employment laws apply to organizations based on the number of people they employ, so as you grow, it’s vital to keep up-to-speed on any laws that newly apply or will soon apply to your organization.

Federal Laws

To understand the scope of many of the federal laws discussed below, employers need to know the definition of discrimination. In the context of employment law, discrimination means taking any adverse (or negative) action against an employee. Adverse action includes but isn’t limited to the following:
– Failure to hire
– Failure to train or offer an opportunity
– Failure to promote
– Failure to offer an accommodation required by law or offered to a peer
– Offering a lower wage or salary than to a peer
– Offering fewer benefits than to a peer (e.g. vacation, 401(k), bonuses, covered expenses)
– Taking more aggressive disciplinary action, including any of the above, than with a peer
– Reducing pay or benefits
– Transferring to a less desirable position, shift, or location
– Demotion
– Termination

Americans with Disabilities Act (ADA) – 15 employees
The ADA protects qualified individuals with disabilities from unlawful employment discrimination and requires an employer to make reasonable accommodations for disabled individuals unless doing so would place an undue burden on the employer.

Title VII of the Civil Rights Act – 15 employees
Title VII prohibits discrimination on the basis of race, color, national origin, religion, and sex. Note that a number of courts have ruled that sex includes sexual orientation and gender identity, and the Equal Employment Opportunity Commission, which enforces Title VII, also operates as if sex includes sexual orientation and gender identity.

Pregnancy Discrimination Act (PDA) – 15 employees
The PDA amended Title VII of the Civil Rights Act to specifically protect individuals from discrimination based on pregnancy, childbirth, or any related medical conditions. It defines pregnancy as a temporary disability for which reasonable accommodations are required.

Genetic Information Nondiscrimination Act (GINA) – 15 employees
GINA makes it unlawful for employers, employment agencies, unions, and training programs to discriminate against an individual because of genetic information. Genetic information most commonly comes to an employer as family medical history, but it also includes DNA information acquired through testing.

Age Discrimination in Employment Act (ADEA) – 20 employees
The ADEA prohibits discrimination against those 40 and older as well as age preferences or limitations in both posting and practice. It forbids mandatory retirement ages except for certain executives and high policymakers who are over 65 and entitled to deferred compensation of a minimum dollar amount per year.

Family and Medical Leave Act (FMLA) – 50 employees
FMLA allows qualified employees to take job-protected leave to care for themselves or a close family member with a serious health condition. It also prohibits discrimination or retaliation against employees for taking leave under the Act.

Employer Mandate of the Affordable Care Act (ACA) – 50 full-time equivalents
The Employer Mandate requires employers with 50 or more full-time equivalent employees (30+ hours per week) to offer minimum essential health coverage at an affordable rate to all full-time employees.

State Laws
Some states are heavy regulators (think West Coast and Northeastern states, in particular), while others are content to add little to what is required by federal law. The laws below are either relatively common or gaining steam in state legislatures, so they should be on your radar. We can help you learn about them and other applicable laws in the state or states you operate in.

Additional Protected Classes – Varying employee counts
Many states have their own civil rights laws that looks much like Title VII, but often take effect at a lower employee count and include additional protected classes. Some of the most commonly added protections are for sexual orientation, arrest records, off-duty use of legal products, consumer debt garnishment, credit information, and marital status.

Pregnancy Accommodation Expansions – Varying employee counts
These laws require that employers provide specific workplace accommodations, even if the employee isn’t suffering from a pregnancy-related disability. Many of the accommodations must be provided without a doctor’s note, such as additional food and water breaks, seating, and reasonable lifting restrictions. Employers may still ask for a note for other accommodations, such as flexible scheduling or light duty, but an employee will not need to prove that they are disabled. Employers do not need to provide accommodations if doing so would create an undue hardship, but the significant difficulty or expense standard for undue hardship is hard to meet.

Paid Sick Leave – Varying employee counts
The paid sick leave laws passed so far share some common elements. Notably, employers are typically required to offer at least one hour of paid sick leave for every 30 or 40 hours worked, and employees can use their leave to care for themselves or a family member (most states also allow the time to be used in case of domestic or sexual violence). The laws vary most—though still not dramatically—with respect to which employees are eligible and when, and what kind of documentation can be required to prove that employees used the leave for a permissible purpose. Some states allow smaller employers to provide unpaid leave.

Criminal History Inquiry Bans – Varying employee counts
Often referred to as “Ban the Box,” these laws prohibit employers from asking about criminal history either until an interview is scheduled or a contingent job offer is made to the candidate. There may also be specific notice requirements if an employer decides not to hire an applicant because of their criminal history.

Salary History Inquiry Bans – Usually all employers
These laws prohibit employers from inquiring about a candidate’s current or previous wages, whether directly or through a third party. Some salary history inquiry bans are stand-alone laws, while others are part of larger equal pay acts.

Social Media Privacy – Usually all employers
Most of these laws share some themes. First, they prohibit employers from requiring or requesting that employees or applicants disclose their login credentials. Second, the laws say employers can’t require or request that an employee or applicant access their personal social media in the employer’s presence or add the employer (or one of their employees) to their contacts or friends list. Third, the laws prohibit retaliation or failure to hire should an applicant or employee refuse such requests for access.