Some states make it mandatory for employees to use direct deposit for their paychecks. However, most states prohibit employers from requiring employees to use either direct deposit or pay-card programs. Click here for a list of laws based on each state.
Employees are more likely to sign disciplinary notices that clarify immediately above the signature line that they may disagree with the warning and, by signing, they are acknowledging only that they received and reviewed the document. We recommend that you have room on your disciplinary notice form for an employee to offer a rebuttal; often employees won’t sign because they do not agree with the contents. We suggest having the signature line read something like this: “I acknowledge that I have read and understand the contents and acknowledge and understand the corrective action required. I also acknowledge and understand the potential consequences of noncompliance. My signature does not mean that I necessarily agree or disagree with the contents of the Written Warning.” If an employee still refuses to sign, you can have another manager (or responsible employee) witness that the employee was given the disciplinary warning and refused to sign.
Employee handbooks are not required, but they should be a staple to any practice and, if written properly and understood by both the practice and employees, can help prevent liability. Keep in mind that when you draft a handbook you want it to reflect your company’s actual practices — “say what you do and do what you say”. Employee handbooks set the expectations between the employer and the employee. They should provide clear guidelines on the company’s rules and practices. There are no laws requiring employers to have an employee handbook, but there are several federal, state, and local laws that employers must make employees aware of in writing. Whether you call it a handbook, employee guidelines, or procedure manual, here are five reasons why this document is strongly recommended:
1. Conveys your company brand, culture, philosophy, mission, and goals. Introduces new employees to your culture, mission, and values and, if well-written sets the tone for a positive employer-employee relationship.
2. Establishes a foundation for effective and consistent policy management and compliance. Helps ensure that key company policies are clearly and consistently communicated and applied fairly across the board.
3. Serves as an essential communication tool between you and your employees by conveying to employees what is expected of them and, in turn, what they can expect of your organization.
4. Can protect your company by preventing misunderstandings, reinforcing employer expectations, and helping to keep your workplace free of potential lawsuits arising from discrimination, harassment, and wrongful termination claims.
5. Defines required federal, state-specific, and local employment laws and employee rights.
In addition to having a handbook, we highly recommend that you have employees sign a handbook acknowledgment. This is a critical part of the process as it demonstrates that employees received the handbook and are responsible for understanding the information contained in it. The acknowledgment process can be seamless, as distribution can often be done electronically, for example, by uploading the handbook to an onboarding portal. These systems often contain an electronic policy acknowledgment feature, which is an effective, “paperless” way to not only distribute your handbook but have your employees acknowledge that they received and understand it. While not required, a well-crafted handbook that is known about, respected, and acknowledged by your employees is a valuable tool for any organization.
Form I-9, Employment Eligibility Verification, is used by the federal government to verify the identity and authorization of your employees to work in the US. It must be completed for all employees working at your company within three (3) business days of their starting date. The form has two parts. The first part, or section 1, is for the employee to complete on the first day of employment. The second part, or section 2, is for the employer to complete within the first three (3) days of the individual’s employment. The employer does this while reviewing the supporting documents that the employee is required to provide.
The requirement varies by state, but we believe all practices should have a written sexual harassment policy. Many states require employers to adopt and distribute to employees a written policy against sexual harassment. The policy should include notice to employees that sexual harassment in the workplace is unlawful and that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment. The policy should also assert the employer’s commitment to investigate any complaint of sexual harassment. As the employer, you should ensure that all employees sign off on the policy every year and understand its importance. Some states require an employer to train employees periodically regarding harassment prevention.
No, meal breaks are noncompensable as long as the break is at least thirty (30) minutes and the employee is free to leave their work area and does not have to perform any work. However, if your receptionist is eating at their desk and answering a call or two during their meal period, this time would be considered time working and compensable.
Most states require employers to give departing employees their final paychecks in fairly short order - sometimes on their last day of work. In some states, these time limits vary depending on whether the employee quit or was fired. Some states require employers to pay out accrued, unused vacation days with the final paycheck (the attached chart below does not include these vacation pay rules). Many employers break these laws out of ignorance. They assume that paying the employee on the usual payroll schedule is sufficient. But violating these laws -- even unwittingly -- can be costly. In some states, if an employer fails to pay a departing employee within the legal time limits, the employer may have to pay additional penalties, interest, and any attorneys' fees and legal costs the employee spends in forcing the employer to comply. Click here for a rundown of state laws regarding the timing of final paychecks.
Severance pay is considered taxable compensation and should be run through payroll. If you wish to avoid tax implications for the employee, you may “gross up” the wages to cover the tax deductions from the net severance desired. Since the pay is made as part of a separate agreement from wages earned, it is best practice to pay severance on a separate check.
If an employee resigns with two-weeks’ notice and we tell the employee to leave prior to the end of the two-week period, are we obligated to pay the employee for the full two weeks?
Employers often have legitimate reasons for wanting an employee to stop working immediately, such as concerns about security or reduced productivity. If the employer has a “required” notice period policy, then most states will view this as an implied contract and require the employer to pay out the notice period. If the employer does not require, but instead requests, a two-weeks’ resignation notice, then employers are not required to pay for the two-weeks’ notice period. However, in most cases, we recommend that all organizations pay for the notice period as a best practice. There are two important reasons to pay the notice period. First, telling the employee to leave after giving notice can turn a “voluntary resignation” into an “involuntary termination,” likely making the employee eligible for state unemployment compensation. Second, from an employee relations standpoint, terminating employees on the spot when they give their two-weeks’ notice sends a negative message to other employees. If other employees give notice as requested, they may be terminated immediately, so it is unlikely they will provide advance notice of resignations in the future.
Employers have discretion when designing their leave and benefit plans and can make eligibility distinctions. These differences should only be based on a bona fide employment-based reason and applied to all similarly situated employees. Examples of employment-based reasons include tenure, full- or part-time status, exempt/non-exempt status, or geographic location.
Yes, alcohol at a company party can be a liability. Employees (or guests) who overindulge could cause an accident at or after the party or violate your harassment policy. While best practice is to make your company parties alcohol-free, there are steps you can take to protect you, your employees and any guests.
See our blog post Holiday Parties and Employer Liability for more information. While these steps will not eliminate all the risks, they can help to reduce your liability and help your employees celebrate safely and responsibly.
Unless an employee was out on a job-protected leave, such as FMLA or a state approved leave, you are not required to return them to their original or an equivalent position, or to bring them back at all. Due to current economic challenges, many practices across the country are having to alter their operations, including restructuring days, hours, and job duties. If you do make changes, we recommend that you explain to your employees why the changes are necessary. Your employees will be more accepting of change if they understand the underlying practice-related reasons for the decision.
If an employer requires attendance at a training, it is considered compensable time and must be paid, regardless of when and where the training is conducted. While the Department of Labor (DOL) has established criteria that must be met for non-work time training, we would encourage employers to speak with their HR representative prior to scheduling any unpaid training to ensure compliance with the DOL guidelines.