PCS Weekly - HR Topic
Workplace Policies and Compliance
Keeping up with evolving workplace policies and compliance requirements is essential. Discover updates and strategies to stay compliant.
Question: Can an employee waive overtime pay with a signed letter?
Answer from Kim, SPHR, AAM, CPIW:
No. An employee can’t waive their right to overtime pay, even if they want to. The federal Fair Labor Standards Act (FLSA) prohibits the waiver of an employee's rights to overtime pay (and minimum wage) in nearly all circumstances.
The only time an employee can be exempt from overtime is when they perform work that qualifies for an exemption under federal (and state) law and meets any other applicable tests or criteria for the exemption.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Are we required to update our I-9s when the documentation used for them expires?
Answer from Eric, PHR:
You would only update a Form I-9 if the expired document pertains to a limited period of employment authorization. You should never reverify U.S. citizens and, in most cases, lawful permanent residents (Green Card holders). However, if a lawful permanent resident presents their employer with temporary evidence of lawful permanent resident status for Section 2 (instead of an unexpired permanent resident card), then reverification may be necessary.
We recommend that you set up a tracking system for the I-9s that will require reverification. Consider setting a calendar reminder for 90 days before the expiration of the document or the expiration date listed by the employee in Section 1 of the I-9, whichever is sooner. Then provide the employee written notice of the need to reverify, the deadline to do so, and the I-9 list of acceptable documents they may use for reference. Once the employee has presented acceptable documents, you should review and complete the reverification section of the Form I-9 (Supplement B of the Form I-9 version dated 8/1/23).
If the Form I-9 version that the employee originally completed is no longer valid, complete Supplement B of the Form I-9 version dated 8/1/23 to reverify the employee. To do this, an employer should: Enter the employee’s name at the top of each Supplement B page you use (and use the New Name field to record any name change the employee reports at the time of reverification or rehire); Use a new section of Supplement B for each instance of a reverification or rehire; Use the Additional Information fields if the employee’s documentation presented for reverification requires future updates; and Sign and date that section when completed and attach it to the employee’s completed Form I-9.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Can we limit which states our remote employees work in?
Answer from Eric, PHR:
Yes. In general, you can determine work locations for your remote employees and choose not to hire or employ anyone in specific states. Business and operational costs as well as state or local employment laws may factor into this decision.
If you do decide to limit which states your employees can work in, we recommend including this information in your job postings. This should help streamline the recruiting process by reducing the number of applications received from states where you don’t intend to hire. You should also make current employees aware of any restrictions on where they can work.
This Q&A does not constitute legal advice and does not address state or local law
Question: What is “at-will employment”? Does that mean I can fire an employee for any reason?
Answer from Marissa, PHR:
At-will employment means that the employer or employee can end the employment relationship for almost any reason (with or without cause) at any time (with or without notice). It does not, however, allow you to terminate someone for an illegal reason, like their inclusion in a protected class or their exercise of a legal right.
Every state (except Montana) assumes the employment relationship is at-will unless there is a legal agreement in place that says otherwise. Assuming you want to maintain the at-will relationship with employees, we recommend including clear language about this in your employee handbook. But keep in mind that even with an at-will relationship, terminations carry risk.
A terminated employee can always claim that they were terminated for an illegal reason, at which point you’ll want to be able to show otherwise. To reduce that risk and nip any potential claims in the bud, you should have and document a lawful, business-related reason for each termination.
You can find more information on employment termination and at-will employment on the platform. If you would like more information on drafting an employment contract, please contact an attorney.
This Q&A does not constitute legal advice and does not address state or local law.
Question: We recently made a couple of small updates to our employee handbook. Do we need to have employees sign a new handbook for each update?
Answer from Shawna, PHR:
No. For small, minor updates, you don’t need employees to sign off, especially if you simply made an administrative change like updating the name of your employee assistance program provider, correcting a typo, or adding a clarifying statement. A simple communication to all employees to let them know that the change has been made, why, and where to find the change should suffice as notice. Larger changes, like a brand-new policy or an update with essential changes, would warrant a new employee signature, especially if they could be disciplined for violating the new or updated policy.
If you need to discipline an employee related to the new policy or update, their signature will help show that they were made aware of the change.This Q&A does not constitute legal advice and does not address state or local law.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What are the penalties and costs for misclassifying employees?
Answer from Kara, PHR:
The answer will depend on a number of factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, and whether or not lawyers or regulatory agencies get involved. Generally, if an employee goes to the federal Department of Labor (DOL) and claims that they’ve been misclassified, the DOL will investigate. If the DOL determines that an employee—or entire group of employees—should have been paid overtime but wasn’t, the employee will be owed up to two years’ worth of unpaid wages (or up to three if the misclassification was “willful”).
The organization may also owe the employee or employees liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization may owe them $4,000.
The organization would also owe the government taxes on those wages, as well as interest on the taxes. Most states also have their own minimum wage and overtime laws, and often an organization can be held liable under both federal and state law, meaning the employee would be owed additional damages for violations of state wage law.
And if you are in a state with late payment penalties, the organization could owe additional damages for not having paid all wages by the time they were due. There’s also a very good chance that the organization will be held liable for attorney’s fees—both the organization’s and the employee’s.
On top of the costs mentioned above, there are potential federal civil penalties of $2,074 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. Finally, statutory interest may immediately begin to accrue on the amount owed.
This Q&A does not constitute legal advice and does not address state or local law.
Question: Do we need to tell employees when employment laws change?
Answer from HR:
Possibly. As the employer, you need to stay up to date on legal changes that affect your organization, and your leadership team, managers, human resources, and payroll departments should be kept aware of any new legal requirements or rights that will apply to them or their employees.
On the other hand, non-managerial employees only need to be informed about changes to the law when notice is legally required. If there’s no requirement, whether to update employees is up to you. Still, making employees aware of their rights is usually a best practice. If they’re aware of what they’re entitled to, they’ll often keep their manager or employer honest by demanding it, which could ultimately save you a lawsuit down the road.
Finally, if a change in the law impacts your policies, be sure to update your handbook and have your employees sign off on it.
More widespread understanding of the new law will help foster compliance, and employee signatures will help show that they were made aware of the policy change and any new rights or responsibilities.
This Q&A does not constitute legal advice and does not address state or local law.
Question: When can we deduct from an exempt employee’s pay?
Answer from HR:
In general, if an exempt employee performs any work during the workweek, you must pay them their full salary for that week. Deductions are allowed, however, for legally required withholdings and benefit elections.
There are a handful of other situations in which a deduction from an exempt employee’s salary would be permissible under federal law:
-For any workweek in which the employee performs no work, including answering emails, texts, or phone calls.
-In the initial or final week of employment based on the number of hours worked.
-For absences of one or more full days for personal reasons other than sickness or disability.
-For absences of one or more full days due to sickness or disability, if the deduction is made in accordance with a bona fide paid sick leave plan (the Department of Labor has previously said that a plan offering at least five paid days off for sickness qualifies as bona fide).
-To offset amounts the employee receives from jury or witness fees or for military pay.
-For penalties imposed in good faith for infractions of safety rules of major significance, in accordance with a clearly established workplace policy.
-For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
-For leave taken under the Family and Medical Leave Act.
This is a complete list of allowable deductions, so if none of these situations apply, an exempt employee needs to receive their full salary for the workweek, regardless of the number of days or hours worked.
This Q&A does not constitute legal advice and does not address state or local law.
Question: If an employee runs out of paid time off, do we have to allow them to take unpaid time off?
Answer from HR:
It depends on why your employee needs the unpaid time off and what you’ve done in the past.
In some situations, such as those that would be covered by the Family and Medical Leave Act, Americans with Disabilities Act, Pregnant Workers Fairness Act, or a similar state law, the employee may be legally entitled to unpaid leave. In those cases, you would need to approve the unpaid leave at least to the extent required by the applicable laws.
In the absence of any legal requirements, if you’ve historically granted similarly situated employees unpaid time off, you should continue to do so. Inconsistency can lead to discrimination claims. (You can make a permanent change in policy and stop granting unpaid time off when it’s not required by law, but that’s the kind of policy shift you’d want to share widely, and if possible, with some advance notice.)
If neither of the above situations apply, you could deny a request for unpaid time off, but be sure to let the employee know why. People appreciate transparency, especially when being told “no.”
This Q&A does not constitute legal advice and does not address state or local law.
Question: We have remote and on-site employees. Do we have to post hard copies of required labor posters in the workplace, or can we provide only electronic ones on our internal web page for all employees to see?
Answer from HR:
As you have remote and on-site employees, we recommend doing both. In December 2020, the Department of Labor issued Field Assistance Bulletin 2020-07, which permits businesses to share the poster information electronically as a supplement to the requirement to post hard copies. Electronic posting is only allowed as a substitute for physical posters if the following conditions are met:
-All the employer’s employees exclusively work remotely;
-All employees customarily receive information from the employer via electronic means; and
-All employees always have readily available access to the electronic posting.
Note that electronic posting of required labor posters must be as effective as on-site posting. They should be readily accessible without employees needing to ask for permission to view them or where to find them. We recommend sharing in a location where remote employees typically receive other legal notices and important information from your organization.
This Q&A does not constitute legal advice and does not address state or local law.
Question: A remote employee told us they were injured at home during their workday. What are our responsibilities?
Answer from HR:
When an employee informs you that they were injured while working from home, take the claim seriously and follow your usual procedure for a workplace injury.
Here are the steps we recommend:
1. Thank them for letting you know about the injury and ask if they need medical attention. If necessary, help them get it. Their health and safety should be your first priority.
2. Have the employee complete a workers’ compensation claim form, which can be obtained from your carrier. The carrier should be notified as soon as possible.
3. Check for any recordkeeping or reporting requirements that you may be subject to under OSHA.
4. Keep a copy of the employee’s claim form and any other supporting documentation.
5. Talk to the employee about what happened to determine if there is a way you can help prevent this kind of injury in the future. For instance, if they tripped over a computer cord, maybe the cords can be bundled and arranged in a safer location.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What does my employee mean when they say they’re going to “file a claim” for discrimination with the EEOC?
Answer from HR:
In the context, filing a claim of discrimination means lodging a formal complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency that enforces Title VII of the Civil Rights Act, where most of our federal employment discrimination prohibitions come from. A claim can be filed by an employee, former employees, or job applicant. The claim will assert that they were discriminated against by the employer because of their race, color, religion, sex, pregnancy, gender identity, sexual orientation, national origin, age, disability, genetic information, or another protected characteristic.
When the EEOC receives a claim of discrimination, it sends a notice of the charge to the employer. The notice will either ask the parties to participate in a mediation program to resolve the claim or instruct the employer to provide a written answer to the charge before it investigates. Although discrimination claims usually need to be filed with the EEOC before a person can sue, filers don’t have to wait for the EEOC to investigate and can instead ask for a “right to sue” letter, which will usually end the EEOC’s investigation. A lawsuit may follow, depending on the outcome and circumstances.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What is a “plan document” with respect to insurance plans offered by private employers?
Answer from Angela, CIC, CISR, SHRM-CP
January 9, 2025
A plan document is the official governing document of employee benefit plans, such as health, welfare, and retirement plans. The Employee Retirement Income Security Act (ERISA) requires that almost all private employers that sponsor benefit plans have corresponding plan documents.Your plan document should include specific information about the plan, such as eligibility, funding and contribution requirements, details about each benefit, and ERISA disclosures. You should have separate ERISA plan documents for retirement plans and the health and welfare plans because the structure, funding, and legal requirements for these plan types differ.ERISA also requires a summarization of the plan document, called the Summary Plan Description (SPD), to be provided to employees within 90 days of becoming covered under the plan and when the plan document is changed. The SPD should be written in plain language so it’s easy for employees to understand the plan’s features and benefits.This Q&A does not constitute legal advice and does not address state or local law.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What should we include in an attendance policy?
Answer from Kyle, PHR
February 6, 2025
Generally, an attendance policy should outline your attendance expectations, the procedures your employees should follow if they’re going to be late or absent, and the consequences when your policy isn’t followed.
Your expectations should include how you define being on time and what you would consider being tardy or absent. This section of your policy might say something like, “You are expected to arrive at the workplace on time and ready to perform your job.”
The procedures section of the policy tells employees what they should do in the event of a planned or unplanned absence, when they need to arrive late or leave early, or if an emergency arises and they aren’t able to notify you ahead of time. It could include instructions on whom to notify (e.g., one’s manager) and when to notify them (e.g., two hours before an unplanned absence).
The consequences section explains what happens when employees don’t follow your policy. “Failure to comply with this policy may result in disciplinary action, up to and including termination” is a typical line. You should also note how many days of unexcused absence, or no-call no-show, will constitute voluntary resignation on the part of the employee.
This Q&A does not constitute legal advice and does not address state or local law.
Question: What is at-will employment?
Answer from Wendy, PHR
February 19, 2025
At-will employment means that the employer or the employee can end the employment relationship at any time, with or without notice, and with or without cause. It does not, however, allow an employer to terminate someone for an illegal reason, like their inclusion in a protected class or their exercise of a legal right.Every state (except Montana) assumes the employment relationship is at-will unless there is a legal agreement in place that says otherwise. Assuming you want to maintain the at-will relationship with employees, we recommend including clear language about this in your employee handbook.
Keep in mind that even with an at-will relationship, terminations carry risk. A terminated employee can always claim that they were terminated for an illegal reason, at which point you’ll want to be able to show otherwise. To reduce that risk, you should have and document a lawful, business-related reason for each termination. This reason should also generally be shared with the departing employee, so they understand the legitimate reasons they were let go and are less likely to come up with their own theory, which may include discriminatory motive.
This Q&A does not constitute legal advice and does not address state or local law.
