TOTAL COMPLIANCE AND BUSINESS SOLUTIONS

TOTAL COMPLIANCE AND BUSINESS SOLUTIONS

              

HR Q&A

Following our HR for Supervisors Training event in March, we compiled a list of our top questions and are providing the answers here. If there are any questions you have regarding HR or supervisor topics, please contact us.

The advice provided below is not intended to serve as legal advice. Our HR consultants are not attorneys but put forth the following questions and answers as a means of clarifying best practices. Additionally, these scenarios and questions do not cover all possible factors so we strongly urge you to contact Blakeman for your particular situation. Since current regulations tend to change or be altered over time, it’s important to verify with Blakeman that your best practices stay up to date as well. For legal advice, Blakeman & Associates can provide referrals for your needs.


Question 1:

When an hourly employee goes to the doctor for a work related injury, does the company have to pay that employee their hourly wage while at the doctor?


Answer 1:

While not required under Workers’ Compensation (WC), it may be required under Fair Labor Standards Act (FLSA) depending on how the employee was directed. Therefore, it is considered an HR best practice to do so.


Question 2:

During a random drug test selection, there is a limited amount of time for the selected employee to take a test. Some managers have not allowed employees to take the test upon being selected. How can I help those managers understand that they’re not staying in compliance?


Answer 2:

Hold the manager accountable and follow disciplinary procedures if they are not complying with directives. An optional action: if an employee misses the window of time by fault of the manager, he should be removed from the site and cannot work until he tests and the results come back. However, depending on the details of the delay and your policy, the employee may need to be paid while waiting for the results.

For Department Of Transportation (DOT)/Pipeline and Hazardous Materials Safety Administration (PHMSA) purposes the guidance for drug testing is: Immediately means that after an employee receives notification, all their actions must lead to an immediate specimen collection.


Question 3:

If an employee is required to visit HR and leave their belongings at their desk to be collected by someone else, how do you communicate this correctly given the employee is being pulled from a team setting?


Answer 3:

You should just request the employee come to HR. If you are terminating the employee, you should go with the employee to pick up their personal belongings after the termination. Provide a box if needed. Stay with the employee and escort them out of the building. During this entire process, remember to treat the employee with respect as this also reflects well on the company with current employees.


Question 4:

A. How long does an employer have to complete an I-9 on a new employee? B. If an employee filled an I-9 when hired do they need to fill one out again?


Answer 4:

A. An I-9 must be filled out by the employee on day one of employment and completed no later than day three by the employer.

B. No, they are completed only when hired. However you may need to reverify an employee at a later date depending on the expiration date of their column A document. Remember, only a temporary employment authorization must be re-verified no later than the expiration date of the document. Be careful not to re-verify other expired documents. It is important that the directions on all 9 pages of the I-9 be followed and given to the employee. See the USCIS Employer handbook for more details.

Question 5:

What is the best format to distribute/discuss the company HR policy manual for existing employees?


Answer 5:

Print a hard copy and distribute as a best practice measure. Give them time to read the manual and obtain a signed acknowledgement form from the employee. We recommend you hold a meeting to conduct an overview of the manual. It is helpful to conduct an overview if you are having issues with employees not following the policies. It would give you a chance to tell them what the issues have been and what is expected.


Question 6:

If an employee makes a complaint about favoritism towards another employee, what steps should be taken to resolve the issue before it becomes a bigger problem?


Answer 6:

We recommend having an open door policy and posting the details of that policy. Be sure to always follow your policy/procedure consistently. You should conduct an investigation to determine if there is an issue. Contact us for guidance on how to conduct a proper investigation. Improperly conducted investigations can easily escalate a problem that may not have existed in the first place. If you discover there is favoritism, take steps to correct the situation.

Correct any deficiencies found. (i.e. if one employee is being addressed for tardiness and other employees are tardy but are not being addressed, take the appropriate steps to make sure everything is consistent.) Also, provide training to the supervisor(s) to ensure the issues do not recur. Remember to document everything, collect statements from involved employees in their own handwriting, and act promptly.


Question 7:

An employee came into my office indicating that since work had decreased, he was going to file for partial unemployment and was not going to report to work. How should this have been handled?


Answer 7:

Follow your attendance policy and be clear about your expectations. If there is work to be done, clearly state the repercussions if the employee decides to stop coming in to work. If he said he is not going to report to work, ask for a letter of resignation (in his own handwriting). Not showing up for work can be a voluntary resignation. Find out details on what partial unemployment is here.


Question 8:

What is the best action(s) to take if you feel that you have an employee who is trying to get fired or claim they’re being mistreated, etc. – when they are not?


Answer 8:

Be careful not to let the employee push you into terminating them or reacting out of frustration.

Remember as the supervisor/manager/employer, not to feel obligated to respond immediately to an employee’s grievance. Although you can provide assurances that action will be taken in a timely manner, do not let yourself be pressured into acting immediately in the moment.

When an employee has a complaint, you should conduct an investigation and follow your policy. Set up a file, keep good documentation on each step of the investigation, but continue to hold the employee accountable to the standards of their job and your policies.

If you find any issues, take steps to ensure the issue(s) do/does not recur. If you find there is no issue, share the findings with the employee. The worst thing you can do is nothing. If there is any type of mistreatment, you must make sure it stops. If you continue to get complaints from the employee, you need to investigate each situation. Contact Blakeman to receive forms to use during this process. Sometimes it’s best for an outside neutral party to assist in the investigation — Blakeman can also help with this.

See here for important work separation issues.


Question 9:

Is Texas imposing fines for employers who fail to provide an adequate response to unemployment claims?


Answer 9:

Texas does not impose a fine yet. Some other states have imposed a fine. However it is in the employer’s best interest to answer in a timely and thorough fashion. The following also applies:

Employers who fail to respond adequately and in a timely manner to a Unemployment Insurance Notice (UI Notice) will have to pay for the benefits regardless of whether the claimant is disqualified eventually. The employer’s UI account will be charged until a decision is made on the appeal. To read more about the Unemployment Insurance Integrity Act, visit DOL’s advisory here.


Question 10:

Some supervisors don’t follow policy regarding disciplinary action. There are some that give employees a written warning without first verbally warning the employees. How can I help them understand it is important to follow the process?


Answer 10:

Review your process with the supervisor and tell them the importance of following it. If the supervisor continues to not follow your company’s process, that is considered a performance problem. Their failure/refusal to do a required part of their job should be addressed and documented. Blakeman & Associates has been successful with onsite Supervisor training classes, particularly in cases when the issue is more widespread.


Question 11:

What is considered temporary employment?


Answer 11:

Texas Workforce Commission (TWC) definition:

TWC
Texas Statutes

  • “Temporary employee” means an individual hired for a temporary employment service.
  • “Temporary employment service” means a person who employs individuals for the purpose of assigning those individuals to the clients of the service to support or supplement the client’s workforce in a special work situation, including:
  • an employee absence;
  • a temporary skill shortage;
  • a seasonal workload; or
  • a special assignment or project.
  • Furthermore, temporary employment means hiring an employee for a contracted period. The classification of “temporary” is defined by the employer. As such, the employer has the right to determine what length of time the employee has to work to fall into a category other than temporary.


    Question 12:

    How can you handle a situation where an employee refuses to comply with a court-order medical support withholding on dependents?


    Answer 12:

    As an employer, you have no involvement over court-ordered child (or medical) support until you are served a Notice of Child Support Due. Unfortunately, there is no room for discussion. You are required by law to withhold per this order:

    12a. Responsibilities Regarding Notice of Child Support:

    Upon receipt of an Order/Notice to Withhold Income for Child Support or Notice of an Order to Withhold Income for Child Support, an employer is considered to have been officially notified to begin income withholding from the employee named and to remit the amount withheld.

    To comply with the Order/Notice, an employer will do the following:

    – Begin withholding for child support no later than the first pay period that occurs after the date the Order/Notice is received.

    – Deduct child support on the regular pay dates, similar to deductions for FICA and federal income tax withholding.

    – Submit payments to the address specified in the Order/Notice on the pay date or for payments made by Electronic Funds Transfer (EFT) or Electronic Data Interchange (EDI), transmit payments no later than the second business day after the pay date.

    – Withhold according to the terms of the Order/Notice until otherwise notified.

    12b. Regarding Child Support Versus Medical Support:

    State and federal law requires medical support to be included when establishing child support or in any other suit affecting the parent-child relationship. [TFC § 154.008 and § 154.181]

    Employers may receive an income withholding order requiring the deduction of a specific amount for medical support. When an employer receives an income withholding order requiring the garnishment of wages for “current cash medical” or “MSPP1”, the deduction should be made along with all applicable child support deductions from the employee’s disposable earnings.

    The court order may, in lieu of ordering cash medical support, require the employee to provide medical insurance through their employer for the dependent(s). When this option is ordered, a National Medical Support Notice (NMSN) will be sent to the employer requiring the enrollment of dependent(s) into a medical health plan.


    Question 13:

    Can we withhold the cost of pre-employment drug screening if the employee does not work for a certain time frame?


    Answer 13:

    Pre-employment drug testing is something that some employers choose to do for applicants.

    Yes, you can deduct from a non-exempt or hourly employee with proper wage deduction authorization (TX Payday Law) but they must make minimum wage and overtime if applicable (FLSA) for all hours worked. It is not regarded under the American Disability Act (ADA) as a medical examination, so it may be done at any point of the selection process, but due to cost issues, most companies restrict such testing to the final candidates for a position. Regarding the issue of who pays for the test, most companies assume that burden.

    Texas and federal law do not have specific provisions one way or the other, but if requiring an applicant to pay for a pre-employment drug test would have the effect of discouraging minority applicants, or else effectively result in less than minimum wage for the employee’s first paycheck, Equal Employee Opportunity Commission (EEOC) and/or the U.S. Department of Labor may have concerns under EEO or minimum wage laws. It would be best to let doubtful cases be reviewed by employment law counsel prior to such testing.

    Even though drug tests themselves are not covered by the ADA, the results from such tests are considered medical records and should be kept in a separate, confidential medical file just as other types of medical records must be maintained under the ADA. There are certain states that specifically address this issue, and employers should familiarize themselves with their state requirements. For example, employers in New Jersey cannot make a candidate pay for his/her drug testing (or medical or other evaluations), unless the position they are applying for is that of a security guard. Even in states where there is no specific prohibition against charging candidates or employees for costs associated with drug testing, it is not a best practice to do so.

    Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees for the time they spend going to and from mandatory drug tests and waiting for and undergoing these tests. The pay requirement applies regardless of whether the tests are scheduled during the employee’s normal working hours. However, under the FLSA, employers generally are not required to pay candidates for the time spent undergoing pre-employment tests.

    More info for Texas Employers:

    **Per FMCSA:
    How to Keep the Records:
    “All DOT drug & alcohol test records must be kept in a secure location with controlled access. Records should be in locked file cabinets. If records are kept electronically, they should be password protected.”

    Question 14:

    When it comes to accommodation and pregnancy discrimination, how would you handle those?


    Answer 14:

    This is a very broad topic, and a perfect one to call Blakeman & Associates about. Details matter, like what accommodation do they need and does ADA, Family and Medical Leave Act (FMLA) or company policies apply?

    Here are some basic links with more information:
    EEOC
    NationalPartnership.org

    Question 15:

    What are the requirements to be able to do in-house drug testing, training, etc.


    Answer 15:

    For DOT it is not allowed.

    For non-DOT drug testing, here is a Drug Free Workplace Adviser from the Department of Labor (DOL).

    If you need DOT or Non-DOT policies to implement best practices for drug testing or other HR related issues, contact us.

    After developing a written drug & alcohol testing policy you will need to conduct training.

    At a minimum, supervisor training should include a review of:

    – Your drug-free workplace policy
    – The supervisor’s specific responsibilities in implementing the policy
    – Ways to recognize and deal with employees who have job performance problems that could be related to alcohol and other drugs

    Blakeman can provide some best practices approaches. Unacceptable random selection practices include selecting numbers from a hat, rolling dice, throwing darts, picking cards, or selecting ping pong balls. You want to make sure you have a written policy in place that fully encompasses all the issues and aspects that a drug testing policy should.

    This would be a good thing to contact Blakeman & Associates about. Not only is there greater risk that the specimen collection might be compromised, but the accuracy of the results is questionable. In addition, given privacy concerns, employers need to develop a system to protect the confidentiality of employee drug testing records, and designate a specific person who will receive the test results from the lab. An in-house test is not technically considered a positive but rather a non-negative. Those tests and employees should be referred to a clinic so proper chain of custody protocols are followed.


    Question 16:

    If an ex-employee files a claim with the Texas Workforce Commission (TWC) and a hearing is initiated and the TWC officer makes a decision, can either party appeal the verdict?


    Answer 16:

    Yes.

    16a. Appeal to the Commission

    If you disagree with the Appeal Tribunal decision, you can appeal it in writing to the Commission.

    You must appeal in writing within 14 calendar days from the date TWC mailed you the Appeal Tribunal. The appeal deadline is printed on the coversheet of your appeal decision.

    You can submit your written appeal online, in person at your nearest Workforce Solutions office, or by mailing or faxing your appeal letter to Commission Appeals at the address or fax number in the instructions included with your Appeal Tribunal decision and also noted here. You cannot file an appeal by e-mail or over the telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your appeal.

    Please keep a copy of your appeal for your records.

    Appeal online: Unemployment Benefits Appeal Form

    16b. Motion for Rehearing

    You may request a rehearing within 14 days of the date TWC mailed you the Commission decision. TWC will grant the Motion for Rehearing only if you can show these three things:

    – Important new information about your case

    – A compelling reason why you did not present this information earlier

    – Why you think this information could change the outcome of your case


    You can submit your written Motion for Rehearing online, in person at your nearest Workforce Solutions office, or by mailing or faxing your letter to Commission Appeals at the address or fax number in the instructions included with your Commission decision. You cannot file a Motion for Rehearing by e-mail or telephone. If you choose to fax the information, keep the paperwork that indicates successful transmission of your Motion for Rehearing.

    16c. Appeal to a Civil Court

    You may appeal to a civil court between 15 and 28 days after the date TWC mailed you the Commission decision. You must have completed all the appeal steps available through TWC, except the optional Motion for Rehearing, before appealing to a civil court. The instructions for submitting an appeal to a civil court are included with the Commission decision.

    If you ask for a rehearing and the Commissioners deny it, you can still appeal that decision to a civil court.


    Question 17:

    Our employee was caught on the job in our truck with illegal substances in their possession. After the police officer wrote a ticket and confiscated the drug, the employee was tested on the spot and came back positive. Apparently we did not follow proper procedure for on-site testing in this instance; what should we have done?


    Answer 17:

    We would have to take a look at the company’s drug and alcohol policies prior to answering. Who tested him on the spot (employer or police)? Was the drug prescribed to him? Was there an Medical Review Officer (MRO) or a company provided urinalysis? Blakeman & Associates would be the best resource to call regarding a situation of this serious nature as soon as possible following the event.

    For more HR advice, contact the HR consultants at Blakeman & Associates.