by Michael Haberman on January 27, 2012 · 0 comments
Here is a revisit to a post written last year. I keep running into a lack of understanding of what the FLSA requires. I am currently writing 30 Days to More Effective HR and the first part deals with the FLSA. (30 Days will be released by subscription in the near future.) So here is the post from last year called Recordkeeping Under the FLSA.
As an HR consultant that specializes in working with smaller businesses I frequently get asked what records have to be kept and how long do they need to be kept. Well that is not an easy answer. Various statutes have different requirements. So in this post I am going to address recordkeeping under the Fair Labor Standards Act.
For all employees the FLSA requires:
- Employee’s full name and social security number, as used for Social Security purposes, and on the same record, the employee’s identifying symbol or number, if that symbol or number is used in place of name on any time, work or payroll records.
- Address, including zip code.
- Birth date, if younger than 19.
- Sex and occupation
- All additions to or deductions from the employee’s wages.
- Total wages paid each pay period.
- Date of payment and the pay period covered by the payment.
If the employee is classified as a non-exempt employee you must also keep the following information:
- Time and day of week when employee’s workweek begins.
- Hours worked each day.
- Total hours worked each workweek.
- Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
- Regular hourly pay rate.
- Total daily or weekly straight-time earnings.
- Total overtime earnings for the workweek.
There is no prescribed method or format for how these records are to be kept. But whatever method used needs to be consistent. Most attorneys recommend that these employment records be kept for 5 to 7 years after the last date of employment of the individual. Payroll records should be kept for a period of two years. Of course any record involved in a lawsuit must be kept for the period of time required by the court.
Timekeeping records are often problematic for many companies. The FLSA allows you to use any method you desire. It only requires that they be complete and ACCURATE. I emphasize that last point because it is often missed in manual timekeeping. With a time clock, if someone clocks in at 08:02 that is accurately recorded. However, if the employee is manually writing their time on a time sheet they will usually enter their time at 08:00. You need to emphasize that the time record MUST be an accurate record of the actual time. If the workers work a fixed schedule from which there is little variation you may keep a record showing the exact schedule of daily and weekly hours and merely indicate that the worker did follow the schedule. When a worker is on a job for a longer or shorter period of time than the schedule shows, the employer must record the number of hours the worker actually worked, on an exception basis.
There is nothing wrong with requiring Exempt employees to keep time records, by the way. You just have to be very careful that their pay is not improperly docked as a result of that time record.
The FLSA is actually more complicated than I have made it out to be. There are many exemptions to the FLSA that may allow for, or require, different records to be kept or not kept. But this set of information should provide you with the basic set of records you need to have.
Fines can be levied against an employer for poor recordkeeping, so be aware.
by Michael Haberman on January 26, 2012 · 0 comments
In the January 24th issue of the Wall Street Journal there was an interesting article entitled An Energy Shot for the Brain. (Sorry no link, I actually read the paper version.) Since it caught my eye I read it and thought “Hmmm I know a lot of HR people that could use an energy shot for the brain.” (Of course I also know some HR people that could use a shot to the brain… but that is a different story.) The story is about a purported brain enhancer called citicoline that is showing up in beverages and dietary supplements. My reaction was yippee a miracle drink for HR!
Before I proceed any further let me say I have not tried this product so I am not endorsing it, with one exception which I will mention later. According to the article “Citicoline is an organic molecule found naturally in the body, particularly the brain. Scientists believe citicoline speeds up the formation of brain cell membranes and may boost production of neurotransmitters essential to brain function.” In some countries it is sold by prescription to help regenerate the brain after a stroke. It has not been able to get passed by the FDA in the US, but some US companies have picked it up as a food and beverage supplement. So it is made available to the public in a drink called Nawgan with the phrase “What to drink when you want to think.” It also comes in a gel form called GungHo. It is also found in pill form called Cognizin.
Like I said I have not tried any of these products. But one product I have tried is 5-Hour Energy drink and it does contain an unknown amount of citicoline, and I have to say that I have used 5-Hour Energy and it works for me. I am not sure it has restored any brain cells, but it certainly picks me up. Now I must confess my stimulant of choice is coffee. I even wrote about that in An Essential Tool of HR: COFFEE. Sometimes however another cup of coffee just does not sit well, so that is where I have substituted 5-Hour and it as worked well on those days of long hours.
So when I read this article about citicoline and the possibility of it improving my thinking I was intrigued. So I may search some out and give it a try and report back to you. In these days of the importance of intellectual capital it never hurts to have an edge. Hmmm… perhaps HR can use this in a number of ways. You want your HR department to stand out in your company? Take away the coffee pot and serve a citicoline laced beverage. Shoot, if you want the entire company to perform better take away the water cooler and substitute Nawgan or have snacks of GungHo laying around.
If anyone from these companies know where I can buy their products let me know.
by Michael Haberman on January 25, 2012 · 2 comments
The definition of when an employee is protected by FMLA was recently expanded by a decision of the Eleventh Circuit Court of Appeals. According to attorneys Jeff Nowak and Eric B. Meyer the decision on Pereda v. Brookdale Senior Living Communities, Inc. altered how a request for FMLA leave must be considered. According to Eric “…in 2005, a Pennsylvania federal court recognized ….that an employee’s FMLA rights become sacrosanct upon requesting FMLA — even if the employee is not yet FMLA-eligible — provided that the employee has satisfied all FMLA service requirements when the FMLA begins.”
The Perda case dealt with a woman who was pregnant and was requesting leave under the FMLA even though she had not yet been at the company for 12 months or worked the requisite 1250 hours. A no brainer for denial you say? Hold on, she was going to be eligible by the time the baby’s birth occured. However, prior to that event arriving the company terminated her. The court hearing the case looked at the regulation about eligibility and it read:
“The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d).
As Jeff Nowak points out “ So, the answer is easy enough: when assessing an employee’s eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin. If an employer terminates the employee ‘in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,’ the employee could advance an FMLA interference claim.
Both Jeff and Eric both offer suggestions for employers in dealing with FMLA leave requests.
From Jeff:
“Keep in mind that the FMLA requires a 30-day notice for foreseeable leave. This is particularly true for the birth of a child. An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.“ Additionally “… don’t treat your employee differently after the leave request has been made.”
From Eric:
- Don’t automatically disregard an FMLA request from an employee who has not satisfied all service requirements at the time of the request.
- The scope of the Pareda decision goes beyond pregnancy. … Therefore, it is broad enough to encompass any request for foreseeable FMLA leave.
- The employee does not get a free pass in between.
- An employee has no legal right to commence FMLA leave early.
- Be sure to check state rules on employee leave.
Both attorneys make it clear that employers are allowed to hold employees requesting FMLA to the same work performance standards to which all other employees are being held. But you CANNOT avoid your responsibility as an employer under the law by playing games with timing. Genuine concerns can be dealt with but trumped up reasons used to terminate someone just to avoid FMLA leave will get an employer in trouble.
Thanks to both Jeff Nowak and Eric B. Meyer for their inspiration in this post.
by Michael Haberman on January 24, 2012 · 1 comment
On January 9th my friend and fellow consultant, Cathy Missildine, wrote a blog post entitled Is the HR Generalist Dead? Her post was based upon a discussion that I participated in along with another two consultants. The basis of the discussion was a general a comment made about the state of business for consultants. One member of the group made the observation that many consultants who provided “generalist” services were not doing as well as “specialist” consultants. One example was a compensation specialist whose business was doing quite well, while we knew several “generalist”consultants not doing so well. Thus came the comment about the death of the HR generalist. Here is my response.
In my opinion I think the world of the generalist is tied not so much to function but tied to the size of the company utilizing the consultant. Bigger businesses generally have a staff of generalists and when they seek the help of a consultant they are looking for a specialist to solve a particular problem. When smaller companies, who may have either a small HR staff, or no HR staff at all, need HR help it is usually on a broader scope, thus a generalist consultant may be more appropriate. The problem that generalist consultants have had during this economic downturn has been with the nature of small business versus that of big business.
Small businesses during the past several years have been reticent, with all the uncertainity, to spend money. If you are unsure about where your next dollar is coming from, or when, you are not going to spend it on consultants, regardless of how much you may need their help. Larger companies on the other hand often use consultants to solve problems that internal staff cannot solve. In some cases the companies may have even cut staff, thus freeing some money to pay for the consultant.
In the non-consultant world of HR I think we are beginning to see the same dichotomy. Larger companies are starting to use specialist even more than they have in the past, at least that is my perception. As I teach the PHR classes more and more students that work for larger companies hold specialist positions. However, smaller companies to do not have the staff or revenue to have anything but generalists. When you only have limited opportunities to have staff you need someone who can do as much as possible, thus the need for a generalist.
So my answer to the question Is the HR Generalist dead is “no”, but the nature of the field has changed. The HR generalist is now transitioning to be a small company position, whether it is in the consulting field or the in-company position. That is my view, what is yours?
