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]

burrr

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

4 Proposed Changes to Overtime Exemptions in the State of Pennsylvania

Original Date: September 3, 2018

As we continue to see changes to exempt and nonexempt in states and cities across the country, the State of Pennsylvania is now proposing new overtime rules.  Under the current laws, “employees who are exempt from overtime under the administrative, executive or professional (white-collar) exemptions must be paid on a salary basis at a rate of at least $250 per week ($13,000 per year) and must perform certain duties.”[i]  The current salary threshold is well below the federal rate of $455 per week and far below the administrative and executive exemption levels in New York State.  According to the Society of Human Resource Management (SHRM), the regulations on exemptions have not been updated since the 1970’s, in the State of Pennsylvania.   Continue to monitor for updates on this changing legislation.

Below are the 4 proposed changes for overtime exemptions in the State of Pennsylvania:

  • “2019: $610 per week ($31,720 per year).
  • 2020: $766 per week ($39,832 per year).
  • 2021: $921 per week ($47,892 per year).
  • In 2022, and every three years thereafter, the salary threshold would be automatically set to the 30th percentile of weekly earnings for full-time salaried workers in the Northeast census region.”[ii]

The proposal as stands will also change the duties tests, to better align with the FLSA duties tests at the federal leave.  The current differences/conflicting areas include:

  • “Include language concerning requirements for meeting the white-collar exemptions that appear to impose heavier proof burdens on employers than under federal law.
  • Still do not incorporate a computer-professional exemption, which is available under the FLSA.
  • Do not recognize a highly compensated-professional exemption.
  • Do not harmonize the outside-sales representative exemption with the FLSA.”[iii]

Other areas to remember:

  • Pennsylvania minimum wage is $7.25 per hour (the same as federal)
  • Federal rate of $455 per week ($26,660 per year); watch for potential changes to this rate
  • New York State Administrative and Executive Exemption level changes
    • $832.50 per week on and after 12/31/18
    • $885.00 per week on and after 12/31/19
    • $937.50 per week on and after 12/31/20[iv]

https://labor.ny.gov/formsdocs/wp/Part142.pdf

  • NYS Minimum Wage (excluding fast food workers) (don’t forget living wage)

[v]

burr min

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/pennsylvania-employers-may-see-big-changes-to-overtime-exemptions.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/pennsylvania-employers-may-see-big-changes-to-overtime-exemptions.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/pennsylvania-employers-may-see-big-changes-to-overtime-exemptions.aspx

[iv] https://labor.ny.gov/formsdocs/wp/Part142.pdf

[v] https://www.ny.gov/new-york-states-minimum-wage/new-york-states-minimum-wage

 

11 Student Loan Repayment Perks Offered by Organizations

Original Date: August 27, 2018

My most recent articles have focused on labor and employment laws, regulations and employer obligations, as we see evolution to legislation.  To lighten up the content, I am focusing on a new and evolving area of recruiting and retaining talent.  Student loan repayment perks and match programs.  Organizations across the country, are now offering student loan repayment perks.  Countries, states and cities are now offering student loan repayment perks to incentivize younger workers to relocate.  I previously wrote about this topic in March of 2016, focusing on the relocation options.  These creative perks continue to grow in popularity (the new dental insurance), as the impact of student loan debt ($1.4 Trillion and 44+ million Americans) continues to have a negative impact on future life planning, purchases and retirement.  Is this perk right for your organization?  I believe it is.

Below are 11 of the perks now being offered by organizations throughout the country:

  • “Price Waterhouse Coopers (PwC) launched its Student Loan Paydown program in 2016. Forty-five percent of the firm’s 46,000 junior employees (with six years’ experience or less) signed up to receive up to $1,200 annually for six years. The firm has found that this program has become a contributing factor in the job acceptance rate among applicants.
    • Starting this summer, PWC will give employees $100 a month (amounting to $1,200 each year) to help pay down student loans. The company’s offer is good for up to six years.  That is a big draw for the company, which recruits 11,000 new employees from college on campuses each year.
  • Fidelity’s holistic approach to addressing employee student loan debt includes a Student Loan Repayment Program (SLRP) (that pays $2,000 per year with a $10,000 cap), and financial counseling and education for employees at all career and life stages. In the development of the program, Fidelity leaders often heard employees express regret that they wish they’d known more when they were in high school and making decisions about how to finance their college education. In response, Fidelity Labs, an in-house product incubator, created an online education platform called the Student Debt Tool to help employees better understand their situation and their options. The tool includes a student loan refinancing platform to help consolidate loans to achieve lower lending rates. It also offers tools and advice to help employees save for future college costs for themselves and their children.”[i]
  • “Freedom 2 Save program works at Abbott, a research and development company headquartered in Lake Bluff, Ill. Full- and part-time employees who qualify for the company’s 401(k) and are also contributing 2 percent of their eligible pay toward their student loans through payroll deductions receive an amount equivalent to the company’s traditional 5 percent 401(k) match, deposited to their 401(k) accounts. The twist is that program recipients will receive the match without being required to make any 401(k) contributions of their own, allowing them to use more of their earnings to pay off student debt. Abbott’s approach avoids the taxes triggered when an employer directly gives employees funds to help pay off their student loans.”[ii]
  • “New York Life recently launched a student-loan repayment program offering up to $10,200 over five years for eligible employees—which tops out at $170 a month.
  • Rise Interactive launched its program by offering a loan-repayment contribution of $50 per month.”[iii]
  • “Startup lenders CommonBondand LendEDU both pledge to pay off your entire student loan balance, regardless of how much debt you have, if you’re an employee. Common Bond will provide $100 a month and LendEDU $200 a month until your debt is settled. Unfortunately, the odds of being an employee at either company are slim: Common Bond has less than 100 employees and LendEDU has just six.
  • Natixis Global Asset Management, the Boston-based division of French investment bank Natixis, rewards loyalty with $5,000 put toward employees’ student loan balance after their five-year work anniversary. They also receive $1,000 a year for the next five years.
  • Online homework helper Cheggoffers employees a $1,000 annual contribution, after taxes, toward their student loan balance. It also provides an online student loan management tool to help workers maximize their payments.
  • Nevada’s Moonlite Bunny Ranchwill match their employees’ student loan payments 100% for two months.  When you consider that employees reportedly make about $3,000 a week at the brothel, the program could work out to be a lucrative offer.”[iv]
  • “The American Bankers Association said that next month it would begin helping employees with their college-related debts. The ABA will pay up to $1,200 per year per eligible employee toward student loans, above and beyond salary and any other benefits. The organization, which represents banks that employ more than 2 million people, said it is encouraging each member bank to take a similar step.”[v]

Below are relocation options, currently being offered or being developed: 

Currently, only 4% of employers are now offering perks outlined above.  As the war for talent continues to increase and turnover continues to be a driving concern in organizations, these perks will grow in popularity.  Will these perks work for your organization?  Maybe or maybe not.  However, 44+ million people with student loan debt is a tremendous labor pool.  Before implementing a program such as this; benchmark options, know the tax advantages and disadvantages and ask your current workforce.  I personally believe there is value in programs such as this and would be happy to work with any organization in implementing a student loan repayment option for the workforce.  It will separate you from your competitors.

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“On Aug. 17, the IRS made public its Private Letter Ruling (PLR) 201833012, which was issued to the requesting company on May 22. The letter responds to an unnamed employer that proposed amending its 401(k) plan to offer a student-loan benefit program under which it would make special 401(k) contributions into the accounts of employees who are making student loan repayments.”[ix]

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/employers-explore-repaying-student-loan-debt.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/401k-twist-on-student-loan-aid.aspx

[iii] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/launching-student-loan-repayment-benefit.aspx

[iv] http://time.com/money/4261054/employee-student-loan-repayment-programs/

[v] http://time.com/money/4555841/student-loans-employer-benefit/

[vi] “Student Loan Repayment Assistance.”  Burr Consulting, LLC Article. March 2016

[vii] http://time.com/money/4810605/memphis-employee-benefit-student-loans/

[viii] “Student Loan Repayment Assistance.”  Burr Consulting, LLC Article. March 2016

[ix] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/IRS-allows-401k-match-for-student-loan-payments.aspx

 

34 Updates to New York State Sexual Harassment Training, Policy and Complaint Form Requirements

Original Date: August 24, 2018

New York State recently released draft requirements for the upcoming Sexual Harassment training, policy and complaint form requirements.  The links and bulleted information below, outline the current expectations of organizations from the state.  There is a comment period open for the draft documents, which can be submitted until September 12, 2018.  More than likely, these will be the established norm moving forward for training, policy and the complaint forms.  Continue to monitor for updates and changes.

New York State Sexual Harassment Training, Policy and Complaint Form Requirements:

An employer’s sexual harassment prevention training must be interactive, meaning it requires some level of participation by those being trained. The training should include as many of the following elements as possible:

  • Be web-based, with questions asked of employees as part of the program
  • Accommodate questions asked by employees
  • Include a live trainer made available during the session to answer questions
  • Require feedback from employees about the training and the materials presented

Using the Training:

  • Script for in-person group training, available in PDF and editable Word formats
  • PowerPoint to accompany the script, available online and for download
  • Video presentation, viewable online and for download
  • FAQs, available online and for download, to accompany the training

Additional Training Expectations:

  • The training should detail any internal process employees are encouraged to use to complain and include the contact information for the specific name(s) and office(s) with which employees alleging harassment should file their complaints.
  • It should also be modified to reflect the work of the organization by including, for example, industry specific scenarios.
  • To every extent possible, this training should be given consistently across each organization’s workforce to ensure understanding at every level and at every location.
  • It is every employer’s responsibility to ensure all employees are trained to employer’s standards and familiar with the organization’s practices.
  • All employees should complete sexual harassment prevention training before January 1, 2019.
  • All employees must complete an additional training at least once per year. This may be based on calendar year, anniversary of each employee’s start date or any other date the employer chooses.
  • All new employees should complete sexual harassment prevention training within 30 calendar days of their start date.
  • Employers should provide employees with training in the language that is spoken by their employees.

Training Checklist:

  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Include examples of unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • Include information addressing conduct by supervisors and additional responsibilities for supervisors.

Sexual Harassment Policy Requirements:

  • prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
  • provide examples of prohibited conduct that would constitute unlawful sexual harassment
  • include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws
  • include a complaint form
  • include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
  • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
  • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue
  • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful

Additional Policy Information

Complaint Form Requirements:

  • Speaking with the employee
  • Speaking with the alleged harasser
  • Interviewing witnesses
  • Collecting and reviewing any related documents

Bonus Section:

Frequently Asked Questions:

Q1. By what date do all of my employees need to be trained?

A1. All employees must complete the model training (link) or a comparable training that meets the minimum standards (link) by January 1, 2019.

Q2. How often must employees receive sexual harassment training?

A2. Employees must be trained at least once per year. In subsequent years, this may be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses.

Q3. What about new employees or those who start after January 1?

A3. All employees must complete sexual harassment training within 30 calendar days of starting their job.

Q4. What if an employee only works part-time?

A4. Employers are required to ensure that all employees receive training.

*all information for each section was taken directly from language on the New York State links.

– Matthew Burr, HR Consultant

15 Federal Record Retention Requirements That Impact Your Organization

Original Date: August 20, 2018

I recently led a webinar on personnel files, “what should and should not be included in personnel files.”  As I designed the training, I carved out a section of the material to record retention periods.  This is an area, that I have audited for organizations and found issues.  How long do we need to keep forms and what are the laws associated to the retention periods?  For most of us in the HR profession and/or small business owners, we generally keep more information than we might need too.  However, it is not recommended to discard or shred any information that there is no retention period on.  Seek guidance if there is a question, prior to discarding documents.  The laws below are federal laws, in many instances, state laws (bonus NY information) have longer retention periods for personnel related documents.  Understand both requirements.

Below are the 15 record retention requirements (more information in links below):

burr chart 1

Additional Information on Records, Retention Period and Laws

Retention of Terminated Employee’s Records Article (Great Information)

Bonus New York State Recordkeeping Requirements:

burr chart 2

burr chart 3

– Matthew Burr, HR Consultant

 

8 Considerations for Mandatory Sexual Harassment Training in New York State

Original Date: August 13, 2018

On April 30, 2018, I wrote an article updating everyone on the upcoming requirements for New York State Sexual Harassment laws and annual training requirements.  The New York State Department of Labor and Department of Human Rights is now in the process of developing and rolling out a model training program, which can be used by organizations to prevent sexual harassment in the workplace.  The material format is mandatory to use.  However, we can implement training that exceeds the minimum requirement of the upcoming state training material.  The DOL and DHS have yet to release the material for use by the public.  Stay tuned.

Below are the 8 considerations for mandatory training requirements:

  1. Annual Training: All New York State employers must provide sexual harassment training to every employee on an annual basis. What about new hires after the training?  We need to determine what to do for these employees, new hire or those who miss.  Continue to watch for additional guidance from state agencies on this area.
  2. Training Requirements: From my research on this subject, all employees and volunteers should also go through the training and understand the policy/complaint processes. We should also include boards of directors in the training mechanism.  Management training should be separate from the employees to ensure discussion.
  3. Recommend Tools to Utilize: This is a mandatory training, as employers we need to ensure our process for documentation is followed and legal. The following are recommendations; a training sign-in and sign-out sheet (sign-out is something not all organizations do, this is one I will be implementing in future trainings), training materials (PPT slides, workbooks, scenario’s, etc.), a video recording of the training session, pictures of the sessions (documenting who was there) and certificates of completion (signoff by the trainer).  Certificates of completion are used at many of our local colleges.
  4. Prerecorded versus Interactive: I have had this question come up many times over the last 3-4 months. Can we do an online version of the training and have employee’s signoff through a pre-recorded training?  New York State is requiring an interactive training.  By interactive it means, employees can have discussions and ask questions.  Can we do this through a webcast?  The answer is unclear at this point, interactive might suggest in person training only.  Continue to watch for updates on this area, as many of us have employees working across the state.  Do not assume a webinar will work at this time.  The general guidance currently, is in person training.
  5. Training Inclusion: The training must include an explanation of sexual harassment, examples of unlawful sexual harassment, federal state and local laws that have direct impact on sexual harassment claims and information available forums for making a complaint. Yes, legal information is required during this training.
  6. Other Thoughts: The policy must contain a standard complaint form. The form should include; submission of the complaint, information to include, bypass procedures (chain of command concerns) and the investigation process. We need to ensure our workforce is trained and fully understands the complaint procedure and process.
  7. Retaliation Training: This is another topic we need to cover not only in our policy, but during the training session. I cover retaliation related to sexual harassment, harassment, bullying, hostile work environment, workplace violence, etc.  We need to ensure there is zero-tolerance for retaliation or any other forms of workplace misbehavior.
  8. False Claims: I have not read anything related to false claim information in my research on state requirements as of yet. However, what if we investigate and find the claim to be false?  This can be detrimental to the accused employee and their career.  This needs to be taken seriously and spelled out in our policy and reinforced during training as well.  Take all claims serious and investigate thoroughly, remain neutral throughout.  Innocent until proven guilty, which is not always easy to maintain during an investigation.

As we get closer to the required dates, there will be more information released on this topic, with tools and resources for all employers to utilize in their organizations.  Seek guidance if you are confused and unclear on specific requirements.  If you do not have someone in house to do the training, work with a consultant or a continuing education department at a local college.  We will be partnering with institutions to ensure employers have resources to use as mandated requirements continue to roll-out from the state.  Many questions have not been answered by the state as of yet, and might not be answered until early October.  More to come from me on this topic, I will write about policies and handbook language in the coming weeks.  Reminder, NYC will have different requirements, watch for updates in the city as well.

SHRM Article on NYS Sexual Harassment Training

NYC SHRM Article on Anti-Harassment Program Review

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– Matthew Burr, HR Consultant

6 Thoughts on Compensation Data

Original Date: August 6, 2018

I am often asked about compensation data, salary and benefit surveys for the Southern Tier of NY and Northern Tier of PA.  The last comprehensive survey that was done for our surrounding communities was completed in 2012-2013, or earlier.  That specific survey was comprehensive and included a variety of industries, which provided significant information on comp and benefits.  The survey also included information on benefits and perks.  Where do we go now for information?  The compensation data is not readily available, graded and aged consistently.  Below are options to consider if you are looking for compensation and benefits data.

Below are my 6 thoughts on compensation data:

  1. Occupational Wages- NYS Department of Labor: The employment and wage data, by occupation is based on survey data which is collected from 51,000 businesses. The current data is based on November 2014-May 2017 dates and adjusted for 2018 COLA’s.  This is a website I use, it is easy to navigate.  Pennsylvania Information Here.
  2. United States Department Bureau of Labor Statistics: The data was collected in May of 2017, with data collected from employers in all industry sectors in both metropolitan and nonmetropolitan areas throughout New York. Not as easy to navigate as the NYS website, but there is valuable information on this site as well for benchmarking.
  3. Alternatives Federal Credit Union Living Wage Survey: “In 1994, Alternatives Credit Union did its first Living Wage Study to address internal staff concerns about compensation levels. Rather than looking at what competitors paid, or what the statutory minimum wage was, the Credit Union wanted to look at what it took to support a person above the poverty level. It has continued to update this study every two years.”[i] The most recent living wage survey was successfully completed in 2017.  Mid 2019, we will see a new survey.  A great option to review living wage numbers for COLA’s.
  4. Other Website Options: Additional options include; com, indeed.com, salary.com, glassdoor.com. These websites provide useful information, the concern is the accuracy of the information being posted.  Salary.com and Payscale.com are comprehensive websites that breakdown information in an easy to search option.  Not every job title is listed, your organizations will need to compare and adjust accordingly.
  5. Society of Human Resource Management Compensation Data Center: “SHRM, in collaboration with Willis Towers Watson, provides SHRM members with accurate and customized salary information for an entire spectrum of jobs ranging from top executive to entry-level positions through the SHRM Compensation Data Center.” The website provides data on 204 individual job titles, with multiple reporting options available.  I have never purchased data from the website, but this is an additional option to obtain compensation data, in specific reporting formats.  A nice place to benchmark.
  6. Industry Specific Salary Surveys: Industry specific data or survey information might also be available. Manufacturing, nonprofit, healthcare, financial industry, etc.  This can be state, regional or national data.  In order to obtain the information, your organization will more than likely need to participate in the survey.  If you belong to any alliances, coalitions, chambers, etc. compensation data or survey participation might be available.

Federal & New York State Antitrust (Collusion Laws)

Enacted in 1890, the Sherman Act is among our country’s most important and enduring pieces of economic legislation. The Sherman Act prohibits any agreement among competitors to fix prices, rig bids, or engage in other anticompetitive activity. Criminal prosecution of Sherman Act violations is the responsibility of the Antitrust Division of the United States Department of Justice.  New York’s antitrust law, sections 340-347 of New York’s General Business Law, is known as the Donnelly Act and was enacted in 1899.  Through amendment and interpretation, the Donnelly Act has come to follow closely the federal Sherman Act, although it differs in some key aspects.  Pennsylvania has similar laws regarding collusion.[ii]

If your organization is interested in conducting a salary and/or benefits survey for the surrounding areas, my recommendation is to ensure a third-party is responsible for collecting and distributing the compiled data to all participants (consultant, comp specialist, retired HR professional, etc.).  A third-party that is neutral and not a participating member of the survey, this will ensure the data is not skewed or misinterpreted.  There should be enough participants to ensure the data provides relevant and comprehensive information.  If you have any questions regarding compensation and benefits surveys or salary data, seek guidance.  There is information available, we just need to understand accurate from fictitious or exaggerated information.

– Matthew Burr, HR Consultant

[i] https://www.alternatives.org/social-responsibility/impacting-our-community/living-wage-study.html

[ii] http://www.justice.gov/atr/price-fixing-bid-rigging-and-market-allocation-schemes

http://www.ag.ny.gov/antitrust/antitrust-enforcement

 

10 Labor and Employment Posting Requirement Considerations

Original Date: July 30, 2018

Currently there are over 350+ regulations for labor and employment posting requirements that impact city specific, county specific, size specific, font specific and state specific, throughout the United States.  From 2013-2017, there have been (2013) 35, (2014) 52, (2015) 47, (2016) 37 and (2017) 44 mandatory posting changes.  In 2018, there have been 31 posting changes in the first half of the year.  In 2012, there were 5 cities with minimum wage ordinances, in 2018 there are more than 40 cities and counties with minimum wage ordinances.  All of these changes can and do impact our organizations.  How do we keep up with these continuous changes that vary by city, county and state?  It can be daunting, but this article is designed to provide some guidance and thought on these changes and a proactive approach to ordering new posters.

Below are 10 considerations for labor and employment posting requirements:

  1. City Required Postings: 55+ cities now require the following postings; minimum wage, paid sick leave, fair chance, discrimination and pregnancy accommodation. Not all 55+ cities require all of these postings, but they do require some of the postings.  Remember, NYC will be requiring a sexual harassment posting later this year.
  2. What do we need to post: The posting requirements will depend on company size, location, industry specific and federal contracts.
  3. Federal Posting Requirements: This includes the Fair Labor Standards Act (FLSA), Occupational Safety and Health Administration (OSHA), Employee Polygraph Protection Act (EPPA), Equal Employment Opportunity (EEO) (15 or more employees), Family Medical Leave Act (FMLA) (50 or more employees), and The Uniformed Services Employment and Reemployment Rights Act (USERRA).
  4. Federal Postings Visible to Applicants: The Employee Polygraph Protection Act (EPPA), Family Medical Leave Act (FMLA) and Equal Employment Opportunity postings must be visible to all applicants. Postings should be visible in interview area’s or conference rooms.  What about phone interviews or skype interviews?  It is recommended to include the language in an email correspondence with the applicant(s).
  5. Remote and International Workers: It is recommended to send the employee a poster for the remote office location, ensure the updated posting requirements are on the intranet or email the posting requirements and verify signoff that the employee received and has copies of the posting requirements. If the employee travels and works in different states (example: New York and Pennsylvania), more than one poster might be required for these individuals with location specific information.
  6. Federal Contractor Requirements: Employee Rights Under the Davis-Bacon Act, Employee Rights on Government Contracts, Notification of Employee Rights Under the National Labor Relations Act, Workers Rights Under Executive Order 13658, Equal Employment Opportunity is the Law, Paid Sick Leave, and Pay Transparency Nondiscrimination Provision.
  7. State OSHA Programs: There are currently 21 states (and Puerto Rico) that have state specific OSHA programs and posting requirements. New York State and the State of Pennsylvania are not included in this list of state specific OHSA posting requirements, for now.
  8. General Posting Requirements: As employers we need to ensure posters are visible. Post where employees report each day, we may need to post in several buildings and/or in several locations.  We should not allow posters to be defaced or taken down.
  9. Federal Posting Penalties: OSHA up to $12,934, EPPA up to $20,521, FMLA $169 for each separate offense and EEO is the Law $545.
  10. New Poster Requirements: That is the question. Mandatory new poster requirements include; new law or regulation, change in law or regulation or agency directive.  Minor changes, the previous version remains in compliance.  Out of date posters are not accepted by the federal or state government.  Once information changes, we need to update immediately.  SHRM recommends taking picture or saving old posters.

The posting requirements continue to change at the federal, state and local levels.  In New York State, we will see changes to minimum wage at the end of 2018 that will require new posters in 2019.  We could also see sexual harassment posting requirements statewide and federal minimum wage changes.  Other thoughts I have include; ban the box postings, no salary history questions, investigation processes, etc.  Do not forget worker’s compensation posting requirements, paid family leave and short-term disability.  Ensure your posters are legal and up-to-date.  This is an area I audit and find common mistakes.  It is better to be proactive as an organization then reactive with labor posters.  There are many websites available for employers to order posters through, with shipping options to provide new posters as changes occur.  Remember, not every change happens at the end of a calendar year.  However, if you do not want to pay, the regulations can be found on government websites (not one website, many).  If you have questions, seek guidance and ensure you are compliant.

– Matthew Burr, HR Consultant