2018 Year-End HR Checklist and 3 Thoughts on FMLA During the Holidays

Original Date: December 10, 2018

As we approach the end of 2018, the HR department can be a very busy place.  Finishing open enrollment processing, working on the holiday party, adjusting the payroll processing schedules because of holidays, performance reviews, finishing training, adjusting compensation levels, etc.  The list can go on and on and never end.  Below is a brief HR checklist of reminders for 2019:


3 Thoughts on FMLA Leave During the Holiday’s:

  1. “When a holiday occurs within a week in which an employee takes a full week of FMLA leave, the entire week is counted as FMLA leave.
  2. If, however, an employee is taking FMLA leave in increments less than one week, the holiday is not counted as FMLA leave—unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.
  3. Company shutdowns of one or more weeks where employees are not expected to report to work, such as for the Christmas/New Year holiday, a summer vacation, or a plant closing for retooling or repairs, do not count against an employee’s FMLA leave entitlement.”[i]

Along with determining whether company holidays count towards the employee’s FMLA entitlement or if FMLA amounts should be on an intermittent or reduced schedule basis, we should also review requirements under state paid leave laws or state FMLA regulations.  State laws will vary on FMLA regulations and requirements, generally more strict than federal guidelines.  Over communicate the requirements and expectations to employees that are currently on federal or state leave(s).  Written communication is always the best for record keeping and legal defense.  If you are confused seek guidance.  Consistency between the workforce is the direction we should move as an organization.

Mandatory State Labor Law Poster Changes Effective January 2019

Federal Contractor and NYS changes highlighted in Red Bold.


– Matthew Burr, HR Consultant

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/three-points-about-FMLA-during-the-holidays.aspx


5 FLSA Circumstances in Which Employers May Make Deductions from Exempt Employee’s Pay

Original Date: December 3, 2018

Exempt employees receive the same amount of predetermined compensation each pay period; weekly, biweekly, semi-monthly or monthly, depending on the payroll processing cycles within our organizations.  The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work.  Exempt employees do not need to be paid for any workweek in which they perform no work.  The exceptions/circumstances listed below are the only reasons an exempt employee does not receive full pay, regardless of the number of hours and days worked in the week.  Before implementing such practices, review state and local law to ensure all is legal.

Below are 5 circumstances for deductions in exempt employee’s pay:

  1. “Deductions from pay are permissible when an exempt employee: is absent from work for 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 plan, policy or practice of providing compensation for salary lost due to illness;
  2. to offset amounts employees, receive as jury or witness fees, or for military pay;
  3. for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
  4. Also, an employer is not required to pay the full salary in the initial or terminal week of employment,
  5. or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.”[i]

The employer will lose the exemption if it has an “actual practice” of making improper deductions from salaried exempt level employees.  There are safe harbor provisions within the U.S. Department of Labor rule, which recommends having policies in place to ensure improper deductions are not taken and good faith efforts are made to address any improper deduction errors or mistakes.  Prior to deducting from an exempt employee’s pay, ensure you have reviewed state and local laws and regulations, as mentioned above.  These deductions should be made on a consistent basis throughout the organization.  I have rarely seen deductions from exempt employee’s pay except for FMLA days and terminal weeks of employment.

Additional Resources:

NY State Opinion Letter

NY State Deduction from Wages

Fact Sheet #17G: Salary Basis Requirement and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)

– Matthew Burr, HR Consultant

[i] https://www.dol.gov/whd/overtime/fs17g_salary.pdf



6 Requirements for Employer Related Awards

Original Date: November 26, 2018

Many of our organizations award employees based on length of service, safety-achievement, productivity goals, employee of the month, employee of the year, continuous improvement metrics, lean six sigma, spot bonuses, etc.  What are the tax implications on these employer sponsored awards?  Does this impact the employees end of the year W-2?  How much can we give as an award without impact to taxes?  Awarding employees for performance is a great idea, if we do this consistent and fairly.  As employers, we need to ensure we follow the IRS guidelines on taxation as well.

Below are 6 requirements for employer related awards:

  1. Employers can deduct a maximum amount for a single employee in a single tax year for both service and safety awards is $400 for an unqualified plan and $1,600 for a qualified plan.
  2. A qualified plan will be established if it is written and if the average combined value of service and safety awards per employee in the given tax year does not exceed $400.
  3. The awards must be defined as “tangible personal property.” Award certificates, cards or credits are not eligible unless they are redeemable only for tangible personal property.
  4. Length of service awards are recognition that many of our organizations award to employees that work for several years.  They may be given tax-free to an employee only on a fifth anniversary and then only once every five years after that; ten, fifteen, twenty, etc.  The five-year plan is standard for many organizations.
  5. Safety-achievement awards may be given tax-free to no more than 10 percent of eligible employees in any one years.
  6. Productivity awards are never eligible for tax benefits.

Helpful Link:

IRS Publication 525 (2017), Taxable and Nontaxable Income

Many other restrictions can and do apply to tax implications related to employer related awards.  These are federal IRS guidelines, ensure you review any state and local taxation requirements prior to developing a policy or giving an award.  Safety awards, length of service, spot bonuses are great options for organizations.  However, if we provide a gift card or award to an employee in March and then it shows up on their taxes at the end of the year, the positive momentum can end quick, if the employee was unaware of the added tax accountabilities during the taxation year.  Communicate the tax implications upfront to ensure no confusion or negative feedback.  Develop a policy and practice that is consistent throughout the organization.  Seek guidance on other questions related to employer related awards, the tax laws can be confusing and complex.

– Matthew Burr, HR Consultant

5 Thoughts on the FMLA’s Key-Employee Exception

Original Date: November 19, 2018

Employers with 50 or more employees in a 75-mile radius from the work location are required to provide Family Medical Leave to employees, under certain circumstances.  These rules do not exclude small organizations from offering FMLA.  This leave can be taken intermittently (down to the hour) or in 12-week increments, if the employee qualifies and the leave is approved by the doctor, organizations and if necessary additional physicians.  During the leave time, the employees’ job is protected, and the employer must reinstate to the same or an equivalent job when they return to work.  In New York State, we also have Paid Family Leave with similar expectations, legislation, rules and regulations.  However, FMLA has a narrow exception that allows employers to replace employees in certain positions.  Organizations can decline to reinstate at the end of the leave period, under this narrow exception.  Circumstances such as this are rarely seen in the workplace and organizations are advised to consult with legal prior to declining reinstatement of any key-employee after FMLA leave has been exhausted.

Below are 5 thoughts on the FMLA’s key-employee exception:

  1. Key Employee Definition: “A ‘key employee’ must be ‘among the highest paid 10 percent’ of all the employees—both salaried and non-salaried, eligible and ineligible—who are employed by the employer within 75 miles of the worksite…. Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses. Earnings do not include incentives whose value is determined at some future date, e.g., stock options, or benefits or perquisites. The determination of whether a salaried employee is among the highest paid 10 percent shall be made at the time the employee gives notice of the need for leave. No more than 10 percent of the employer’s employees within 75 miles of the worksite may be “key employees.”[i]
  2. Substantial and Grievous Economic Injury: “The regulatory language…is more stringent than the “undue hardship” test under the ADA…Although there is not a specific formula to make this determination, the regulations provide general guidance. Employers should consider whether reinstatement threatens the economic viability of the organization or whether it will cause long-term economic injury.[ii]
  3. Determination and Providing Notice:  The organization must first determine if the employee does meet the key employee exception under the narrow FMLA rule, there are specifics regarding the top 10% of the organization, not every employee can be classified in this category, caution should be taken when this determination is made.  “An employer must inform the work in writing at the time leave is requested that he or she qualifies as a key employee and might be denied reinstatement…discuss the consequences of denying reinstatement…provide to the employee in person or by certified mail…the determination letter can’t deny FMLA leave, but it intends to deny reinstatement…an employer who fails to provide notice will lose its right to deny reinstatement.”[iii]
  4. Approve the Leave: “A key employee’s rights under the FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work, or the employer actually denies reinstatement at the conclusion of the leave period,” according to the DOL’s website. Workers are eligible to maintain their health benefits during the leave period, and employers must continue to pay associated premiums.”[iv]  If the key employee wants to return to work at the end of the FMLA leave, the employer must again make another determination regarding restoration regarding substantial and grievous economic injury based on the current time and facts.  This determination can be complex and should be taken seriously, show me the data and facts to back up the decision.
  1. State Law Review: “In some cases, state law may provide for additional time off after FMLA leave has been exhausted, or the federal and state leave period may run concurrently. Goldstein recommended that employer policies inform employees that:
  • State family and medical leave laws may offer more or different protections or benefits to employees than federal law.
  • The organization will comply with all such laws.
  • Eligible employees will receive all required leave and benefits.”[v]

There is no key employee provision in the New York State Paid Family Leave legislation.

The Key-Employee Exception under current FMLA law is rarely used in any organizations.  I have not used this provision for any FMLA cases managed as a consultant or in previous HR roles.  The takeaway from this article is like any other FMLA or PFL case we manage in the workplace; manage the paperwork (follow-up on old FMLA open claims), send the necessary letters, follow-up on questions or concerns, hold the employee accountable and follow the law; federal, statewide and local legislation.  Seek guidance prior to deciding on key-employee exceptions and provisions.  FMLA has been a federal law since the early 1990’s for work and life balance.  We should be working with our employees to ensure they have the work-life balance, while holding them accountable to policies, procedures and legal expectations.

Draft Key-Employee Notification Letter

2019 Paid Family Leave Changes:


– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/whatisthekeyemployeeprovisionunderthefmla.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/whatisthekeyemployeeprovisionunderthefmla.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-steps-to-comply-with-the-fmla%E2%80%99s-key-employee-exception.aspx

[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-steps-to-comply-with-the-fmla%E2%80%99s-key-employee-exception.aspx

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-steps-to-comply-with-the-fmla%E2%80%99s-key-employee-exception.aspx

6 Legal Considerations for Time Off to Vote in New York State and the State of Pennsylvania

Original Date: November 5, 2018

Voting day is November 6, 2018, for most of us in New York State and the State of Pennsylvania.  Currently, there are 22 states that have laws on paid leave for voting.  As employers, we need to be aware of these laws at the local, city and state levels, to ensure posting requirements and legal time off for employees to vote, if needed.

Current New York State Voting Leave Laws:

  1. “Time Off Allotted: A registered voter who does not have sufficient time outside of his/her working hours to vote, may, without loss of pay for up to two hours, take so much time as will (when added to voting time outside of working hours), enable him/her to vote.
  2. Wages: An employer is required to pay an employee for up to two hours of voting time.
  3. Exception: An employee with four consecutive hours either between the opening of the polls and the beginning of his/her working shift, or between the end of his/her working shift and the closing of the polls, shall be deemed to have sufficient time outside of his/her working hours within which to vote.
  4. Notice Requirement: An employee must notify his/her employer of the requested absence at least two days, but not more than ten days, prior to the day of the election.
  5. Posting Requirement: At least ten working days before every election, every employer shall post conspicuously a notice setting forth these provisions; such notice shall be posted until the close of polls on Election Day.”[i]

Current State of Pennsylvania Voting Leave Legislation:

  1. “Time Off Allotted: The statute does not provide for any period of leave. It is unlawful for a person to use force, violence, restraint, or to inflict or threaten to inflict injury, damage, harm or loss on a person to induce or compel such person to vote or refrain from voting.”[ii]

burr map


Draft Organizational Policy:

“Organization ________believes that it is the responsibility and duty of employees to exercise the privilege of voting in elections. In accordance with this philosophy, the company will grant its employees approved time off to vote if necessary due to work schedules.

Time Off for Voting:

All employees should be able to vote either before or after regularly assigned work hours. However, when this is not possible due to work schedules, managers are authorized to grant a reasonable period of time, up to three hours, during the work day to vote. Time off for voting should be reported and coded appropriately on timekeeping records.”[iv]

Prior to developing any written policy or procedure, ensure that you fully understand local, city and state laws on time off to vote requirements.  The chart above only covers state legislation, it does not include any potential city or local regulations.  Metropolitan areas might have more complex voting leave laws, review local regulations as well.  “About 4 in 10 eligible voters did not vote in the 2016 presidential election…businesses can help solve this problem by making sure that all employees have paid time off to vote.”[v]  Encourage employees to vote, but hold them accountable to the rules and policies of the organization.  Be consistent throughout the workforce and ensure a fair time off process for all employees.  If you are confused, seek guidance.

– Matthew Burr, HR Consultant

[i] https://www.dorsey.com/~/media/files/newsresources/publications/2008/10/employee-time-off-on-election-day-a-statebystate__/files/election-guide/fileattachment/election-guide.pdf

[ii] https://www.dorsey.com/~/media/files/newsresources/publications/2008/10/employee-time-off-on-election-day-a-statebystate__/files/election-guide/fileattachment/election-guide.pdf

[iii] Dorsey and Whitney, LLP

[iv] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_009836.aspx

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/how-to-handle-employee-requests-for-time-off-to-vote.aspx


2019 Open Enrollment Checklist, Communication Options, Recommendations and Questions to Consider

Original Date: October 29, 2018

Open enrollment has started or will be starting very soon for many of our organizations.  As leaders, we need to assist employees in gaining insight into their benefits and changes to benefit plans; communicate any significant changes and ensure employees are making the best possible selection for themselves and their family members.  Open enrollment and understanding benefit changes can be confusing for any of us, especially if there are significant changes.  It is our responsibility to effectively communicate any changes or complexities during the open enrollment process.  Know your workforce and how to effectively communicate these changes.

The Open Enrollment Checklist:

  1. Be prepared to answer employee questions regarding any legal changes to the healthcare plan.  This can be an area of confusion.
  2. Make a list of anything new and exciting that will enhance your open enrollment processes. Effectively communicate these new and exciting benefits to the workforce.  Over communicate these changes, especially if they are significant.
  3. Consider online enrollment programs and software if you haven’t already. Allow time to implement these programs before your open enrollment period.  With any significant online open enrollment, comes training.  Train the workforce on how to use the online enrollment tools and programs, sit with employees and work through any issues or concerns.  Do not assume that every employee is computer savvy or will know how to use these systems.  Also remember website security, as we just watched 75,000 people’s identity get hacked on the Healthcare.gov website.  Security and data protection is a top priority, this should be communicated and emphasized.
  4. Maintain records of past enrollment employee questions, comments and concerns, preferred communication methods, trends in employees’ selections and other information that will help you better serve employees during open enrollment.  Questions to consider shown below:
  • “Has the employer’s prescription drug coverage changed?
  • What is the status of health coverage for my working spouse or children?
  • Are my preferred doctors and other medical service providers still covered?
  • Has the employer taken steps to make health care costs more affordable for me?
  • Has the employer changed administrators for medical benefits?
  • Is the employer offering new or expanded options for receiving care that might be beneficial to me?
  • Has the employer added new or expanded voluntary benefits I might find valuable?
  • Does the employer’s wellness plan have new features that can help me manage my health or save me money?
  • Has the employer added or expanded coverage for complementary or alternative medical services?
  • Has the employer added or expanded the use of technology for delivering and managing my benefits?”[i]
  1. Change benefit offerings before the open enrollment period to avoid rushing at the last minute and miscommunications.  Work with your benefit administrators to ensure efficient and accurate information.  Establishing a benefits committee internally to work through these changes is a great option for any organization.
  2. Survey employees on what they are seeking in terms of benefit offerings and any improvements they would like to see. Customize your offerings to your employee population.  Sample survey questions below:
  • Do you understand the health benefits that are available to you through the _____?
    • Do you know whom to ask about health benefits if you have questions?
    • How satisfied are you with the information on coverage options and plan changes you receive during open enrollment?
    • Which level of health insurance are you currently enrolled in? [Insert options]
    • What additional level(s) would you like to see offered? (Check all that apply.)  [Insert additional options]
    • How satisfied are you with the health benefit plan choices your organization offers (i.e. the different plans you get to choose at open enrollment)?
    • How satisfied are you with the group of doctors you can choose from under your benefit plan?
    • How satisfied are you with the range of services covered by your health benefits (i.e. preventive care; emergency care; eye care; available specialists; OB-GYN; chiropractic; etc.)?
    • How has your experience with [insert carrier] been?
    • What changes would you like to see in your benefit plans? Please note that some of these may increase premium rates.  Please check all that apply.
  1. Consider offering new benefits, even if they are 100 percent voluntary.
  2. Do not forget COBRA paperwork, if applicable.

Communication Process:

  1. Hold meetings with employees to review coverage options and changes.  These meetings should be open to spouses and should occur on first, second and third shift, to ensure all employees have the option to participate.  Offer information regarding benefits in various formats to your employees; email, health fair, bulletin board or Intranet tools.
  2. Communicate helpful phone numbers and websites to employees looking for additional resources.
  3. Be prepared to answer questions that employees asked most frequently last year.
  4. Create a frequently-asked-questions sheet with answers to distribute, post or email to employees.  This should be done prior to the open enrollment process.
  5. Provide answers to basic questions, such as how much premiums will increase, new coverage options, etc.  Keep this as simple as possible, benefits are complex we need to communicate this so all can understand.
  6. Anticipate complex questions regarding traveling outside of the country, FSA coverage and emergency issues.  Yes, these questions will be asked.
  7. Other considerations: open enrollment schedule, statement of current coverage, plan-specific changes and rates, plan-specific summaries, open enrollment booklet forms, deadline for open enrollment and all legally required information.
  8. Over communicate deadlines, with frequent reminders.
  9. Send a reminder the day before the enrollment deadline and follow-up directly with employees if possible.  Accountability in the process is necessary for the process to be effective.
  10. Remain available through various mediums for employees to contact with questions and clarification.

Post Enrollment and Beyond:

  1. Check enrollment forms for any missing information?
  1. Check enrollment forms for any information that was incorrectly filled out?
  2. Submit all enrollment forms to the carrier?
  3. Ensure that you are in compliance with any health care reform provisions that affect your plan and employees?
  4. Send a follow-up email to ensure all employees received their ID cards?
  5. Follow up and make sure all employees are clear about their benefits and don’t have any outstanding questions?
  6. Begin the communication process early for 2020 open enrollment and consider marketing additional benefits in June or July.[ii]

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/health-plan-questions.aspx

[ii] https://www.thehortongroup.com/annual-open-enrollment-checklist

12 Weeks of Paid Bereavement Leave in New York State (Potentially?)

Original Date: October 15, 2018

Do not let this headline fool you, the 12-weeks of paid bereavement leave legislation passed through the Senate and Assembly without many of our organizations knowing about the potential changes, earlier this year.  This bill is designed to modify the current New York State Paid Family Leave law to include paid bereavement.  The paid leave will draw from the same pool of money as Paid Family Leave, from the worker’s compensation fund.  The bill has not been signed into law but is awaiting the governor’s approval, after it is presented.

Below is current information on paid bereavement leave and additional informational websites:

  1. “Section 1:
    1. Amended Part A to state (a) to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition of the family member including bereavement upon the death of such family member.
    2. Adds a new Part D that states “Family leave” shall mean any leave taken by an employee from work: (d) leave taken for the purposes of bereavement due to the death of a family member.
  2. Section 4:
    1. Amended to include that in the case of family leave due to bereavement”[i]
  3. “The bereavement provision would cover the death of a worker’s spouse or domestic partner, child, parent, parent-in-law, grandparent or grandchild.”[ii]
  4. “Under the Paid Family Leave law, workers can collect a portion of their average weekly wage — ranging from 50 to 67 percent as the law is phased in — but capped at the corresponding amount of the statewide average. The state average weekly wage is currently $1,357, according to the Department of Labor, which means the most anyone can currently collect is about $680 a week.”[iii]

Additional Information:

Senate Bill S8380A

PDF Version of the Bill

Again, the bill has passed through the Senate and Assembly, but has not yet been presented to Governor Cuomo.  My thoughts on the bill passage, is, we will not see any movement, signature or implementation on these significant changes until after the November elections and 2019 increases/changes to NYS Paid Family Leave.  Organizations should continue monitor for any communications or updates to this pending legislation, as it will impact the way we manage our organizations and workforce.  As a reminder the employee deduction rates will increase in 2019, to offset the 10-week, 55% increases to Paid Family Leave, shown below for increases in granted leave in 2019.  Seek guidance on PFL or paid bereavement leave if you do have questions.


– Matthew Burr, HR Consultant

[i] https://www.nysenate.gov/legislation/bills/2017/s8380

[ii] https://nypost.com/2018/08/01/bill-would-grant-12-weeks-paid-bereavement-leave-to-all-new-york-workers/

[iii] https://nypost.com/2018/08/01/bill-would-grant-12-weeks-paid-bereavement-leave-to-all-new-york-workers/

3 Thoughts on Complying with the Form I-9 and Remote Workers

Original Date: October 8, 2018

I recently completed a webinar on storing and retaining I-9 forms, one of my favorite topics.  The webinar included detailed discussion on fines, processes, common mistakes, proactive audits and challenges with verification of remote workers.  Verifying and complying with I-9 form requirements can be challenging with a remote workforce.  What processes do we follow?  How do we verify the information is legal and accurate?  A 2017 SHRM article, “explained that remote hires must still complete section 1 of the form and the employer’s agent or representative must complete section 2 in its entirety, including a tactile inspection of the documents presented by the employee.  This means no photocopying of the documents and sending them to human resources for completion of section 2.”[i]

Below are thoughts on Form I-9 compliance and remote workers:

  1. Create a Policy or Process: The policy should be clear on who can act as an agent for our organization.  The policy should include instructions and guidance on how to manage the process.  SHRM recommends; HR professionals or consultants, local librarians, attorneys or accountants, state workforce agency staff or notaries.  “It’s also important to know which states may prohibit notaries from completing the Form I-9 or have different requirements…California, for example, has indicated that the completion of an I-9 form requires you to be bonded as an immigration consultant.”[ii]  Other thoughts on notaries; the Notary Public does not actually notarize the form I-9.  The individual should review the identification submitted, complete the form and attests that the information is true and accurate to the best of their ability.  Organizations should send a valid request to the Notary Public prior to requesting completion of the form, to avoid confusion, mistakes and refusing to complete.  The final concern is unfamiliarity with the form.  If you have remote workers, networking with notaries and providing guidance is necessary.  Notaries are not trained to complete Form I-9’s, proactive communication is necessary.
  1. Clear Guidance and Instruction for Form Completion: Communicate timely and accurate instructions to the notary and the employee in a standard letter.  Describe the process, instructions and the importance of completing the form.  A frequently asked questions section is a great add to the instructions.  The guidance should highlight instructions for returning the completed forms in their original state, as soon as possible.  Providing a return paid envelope will is a recommendation to expedite the process.  Organizations should also consider calling the employee or notary to assist during the verification process.
  1. Review and Audit all Remote (and in person) Completed I-9 Forms:

“Common mistakes to look for include:

  • Wrong documents accepted.
  • Missing or transposed document information.
  • Failure to retain photocopies when required by the organization or E-Verify.”[iii]


USCIS Guidance on Remote Workers:

“You may designate an authorized representative to fill out Forms I-9 on behalf of your company, including personnel officers, foremen, agents or notary public.  The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes.  If an authorized representative fills out Form I-9 on your behalf, you are still liable for any violations in connection with the form or the verification process.

When completing Form, I-9, you or authorized representative must physically examine each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it.  Reviewing or examining documents via webcam is not permissible.

If the authorized representative refuses to complete Form I-9 (including providing a signature) another authorized representative may be selected.  DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If you hire a notary public, the notary public is acting as an authorized representative of you, not as a notary.  The notary public must perform the same required actions as an authorized representative.  When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.”[iv]

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/how-to-comply-i9-requirements-remote-workers.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/how-to-comply-i9-requirements-remote-workers.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/how-to-comply-i9-requirements-remote-workers.aspx

[iv] https://www.uscis.gov/i-9-central/i-9-central-questions-answers/faq/i-hire-my-employees-remotely-how-do-i-complete-form-i-9


9 Unique Interview Questions Corporate America Can Ask

Original Date: September 17, 2018

We all have stories from our past interviewing experiences in which companies have asked unique, weird, ridiculous and challenging interview questions.  In my career, I have had the opportunity to interview with great companies and have been asked some of these unique, weird, ridiculous and challenging questions.  In fact, there were times I could not answer certain questions.  Preparing for every interview question is impossible.  However, the more we prepare and know, the more confident we will become.  This is also true for the interviewer.

Below are the 9 unique interview questions:

  1. How many tennis balls can you fit into a limousine? (Monitor Group): This is a logic question and one that will throw many of us during an interview.  Think about cubic space in the limo and work backwards.  Guessing an answer will more than likely generate a response from the interviewer, how did you come up with that number?  Be prepared to answer with logic.  Sit in silence and think through a response.
  1. How much should you charge to wash all the windows in Montana? (Google): Designed to see how applicants think on their feet and react to under pressure during the interview. Work through the answer out loud and show the interviewer you can think on your feet.  There isn’t enough information and time to come up with the correct answer.  Be creative and confident in your reasoning and response.
  1. Explain the internet to an 8-year old in 3 sentences? (Microsoft): “What? Use your first sentence to establish a basic premise: “The Internet is a series of tubes.  How? Your second sentence can describe the first: “The tubes connect information that is stored on computers throughout the world.  Why? Finally, close by summing up the purpose of the Internet: “It helps people to access global information quickly and easily.”[i]
  1. How would you solve problems if you from Mars (Amazon): Another question requiring us to think outside the box. Be creative and answer questions like this with confidence and logic.  If you use this question, know there is not a right or wrong answer.
  1. How would you find the words that became obsolete in English language between 16th and 17th century? (Uber): Using a dictionary probably wouldn’t work well as an answer to this question. What about a search engine?  Utilize resources.   
  1. What do you think of garden gnomes? (Trader Joe’s): This question is more than likely meant to confuse the applicant from the generic interview questions, geared to see how you respond to one of those weird questions. Take a breath and answer the question with something that makes sense.  This is not a question I would use during an interview.
  1. If you were a pizza delivery man, how would you benefit from scissors? (Apple): Another question requiring a creative response. This is designed to stress an applicant out and see if you can think on your feet or in your chair.
  1. How would you test an elevator? (Microsoft): This is an analysis and creativity question, think through your answer before you respond. Always be prepared to sit in silence before answer the question.  Silence can be golden and a problem during an interview.
  1. How does the devaluation of the dollar impact our trade? (Rolls Royce): I have to admit, this question was asked to me during an internship interview in graduate school in 2010. As an HR grad student, I was confidently rolling through my overprepared answers to the standard questions and the interviewer asked this.  It caught me totally off-guard and I could not respond with a business savvy answer.  In fact, I asked to come back to this question later in the interview, we never came back to this question during the interview.  Think about tariffs, suppliers and logistics.  Those answers will work for a question such as this.  Don’t be like me!
  1. Bonus question: Tell me about a time you failed? (My favorite question): This is the question I ask to every applicant. I’m not looking for a time you failed, I’m looking for the failure, and the lesson learned, what you did differently, how you improved and what you might have done differently prior to failing.  Situation, Action and Results.  Answer the entire question in detail, we’ve all failed.  “I’ve never failed.”  This answer is the worst one you can possibly give.

– Matthew Burr, HR Consultant

[i] https://www.themuse.com/advice/4-insanely-tough-interview-questions-and-how-to-nail-them

4 Thoughts on FMLA Requirements & the Revised Forms

Original Date: September 10, 2018

The Department of Labor (DOL) recently validated and rereleased the Family and Medical Leave Act certification forms and notices, through August 31, 2021.  According to the DOL, there were no significant changes to any of the downloadable forms we as employers provide to employees and currently utilize for communication and postings.  As we did see over the summer, the older form expired at the end of May 2018 and the DOL extended the expiration dates month by month through the end of August, until a new form was approved last week.

Below are the 4 thoughts on new and old FMLA forms:

  • FMLA certification and notice approval process: The Office of Management and Budget receives the submitted FMLA forms from the DOL, every three years.  The review is required every three years to ensure the certification and notice process isn’t inefficient or bureaucratic.
  • Mandatory use of the FMLA forms: “Employers don’t have to use these forms…the DOL logo makes the forms look more official than they are…copy and paste the information from the DOL form into the employer’s own form.”[i] If any employer does utilize their own form, it should be as simple and direct as possible.  Any language changes to the form or conflicting information can be a liability for employers.  Outside legal review is recommended prior to implementing organizational specific language for in-house forms.  I recommend using the FMLA forms provided by the DOL, they are easy to download and easy to explain to the workforce and approved by the government.
  • Medical Certification Form: This form can help determine if requests made by an employee is a serious health condition covered by FMLA (and PFL if applicable), or not.  Serious health condition(s) is defined by the FMLA as an illness, injury impairment, physical or mental condition that requires inpatient care.  Staying in a hospital, hospice and/or residential medical facility.
  • FMLA Completed Certifications: “Doctors aren’t the only health care providers who may certify FMLA leave. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors can all certify leave, as can nurse practitioners, nurse-midwives, clinical social workers and physician assistants. Each of these providers must be licensed to practice in the state. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston may certify FMLA time off as well.”[ii] Ensure the form is completed accurately by a certified health care provider.

FMLA requirements can vary state by state.  How does FMLA interact with Paid Family Leave?  Can we run the leave concurrently with PTO, vacation, sick leave, short-term disability, long-term disability, PFL, personal days, etc.?  Know what is required in your specific state prior to implementing or updating any policies or procedures.  A blanket policy on FMLA will not work throughout the country.  Ensure proactive audits with open FMLA cases.  Tracking and auditing open FMLA cases is vital to ensure legal compliance, consistency and accuracy.  Ensure medical certifications are up-to-date and recertified as necessary, hold employees accountable.  I have audited organizations that have not asked for recertification on open cases for many years.  Seek guidance if you are unsure how to audit, create a policy, enforce a policy or communicate with the employees and remember HIPPA and Paid Family Leave.  Lax FMLA processes will not work for any organization.

Below are the revised FMLA forms and notices:

Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH-380-E).

Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F).

Notice of Eligibility and Rights & Responsibilities (Form WH-381).

Designation Notice (Form WH-382).

Certification of Qualifying Exigency for Military Family Leave (Form WH-384).

Certification for Serious Injury or Illness of Current Servicemember—for Military Family Leave (Form WH-385).

Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).

Recently Updated New York State Paid Family Leave Decision on Premium Rate for Leave Benefits and Maximum Employee Contribution for Coverage Beginning January 1, 2019:

“Accordingly, based on commonly accepted actuarial principles, the Superintendent has determined that the premium rate for Family Leave Benefits for coverage beginning January 1, 2019 shall reflect the increase in benefits for 2019, determined as 0.153% of an employee’s gross wages each pay period up to and not to exceed an annual maximum employee contribution of $107. 97. If an employee’s contributions reach the annual maximum employee contribution of $107.97 before the end of the calendar year, the employee shall not be liable for any additional contributions for that year. Employers shall collect employee contributions consistent with this Decision.”[iii]

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/FMLA-forms-extended.aspx

[ii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/FMLA-forms-extended.aspx

[iii] https://www.dfs.ny.gov/insurance/pfl/dec_prem_rate_2019.pdf