July 2011

Many employers are confused over what they may or may not deduct from pay. Here’s what the FLSA has to say:

“[T]o qualify for exemption under the FLSA generally an employee must be paid at a rate of not less than $455 per week on a salary basis. As a rule, if the exempt employee performs any work during the workweek, he or she must be paid the full salary amount. An employer may not make deductions from an exempt employee’s pay for absences caused by the employer or by the operating requirements of the business. If the exempt employee is ready, willing and able to work, an employer cannot make deductions from the exempt employee’s pay when no work is available.

“To qualify for exemption, employees generally must meet certain tests regarding their job duties and meet certain compensation requirements. Job titles do not determine exempt status. You should also review the other sections of this Advisor for help in determining whether the employee meets the duties tests for exemption.

“Deductions from pay are allowed:

• When an 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.
• To offset amounts employees receive as jury or witness fees, or for temporary military duty pay.
• For penalties imposed in good faith for infractions of safety rules of major significance.
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
• In the employee’s initial or terminal week of employment if the employee does not work the full week.
• For unpaid leave taken by the employee under the federal Family and Medical Leave Act.

“In addition, deductions may be made from the pay of an exempt employee of a public agency for absences due to a budget-required furlough, and special rules apply when such employees take partial-day (or hourly) absences not covered by accrued leave.”

Each of these allowable deductions is described elsewhere in the Compensation Requirements section:

What kinds of deductions are not allowed?

“Deductions for partial day absences generally violate the salary basis rule, except those occurring in the first or final week of an exempt employee’s employment or for unpaid leave under the Family and Medical Leave Act. If an exempt employee is absent for one and one-half days for personal reasons, the employer may only deduct for the one full-day absence. The exempt employee must receive a full day’s pay for the partial day worked. Other examples of improper deductions include:

• A deduction of a day’s pay because the employer was closed due to inclement weather.
• A deduction of three days pay because the exempt employee was absent for jury duty.
• A deduction for a two-day absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice of providing wage replacement benefits.
• A deduction for a partial day absence to attend a parent-teacher conference.

What’s the effect of isolated or inadvertent improper deductions?

“Improper deductions that are either isolated or inadvertent will not violate the salary basis rule for any employees whose pay had been subject to the improper deductions, if the employer reimburses the employees for the improper deductions.

What if the improper deductions are not isolated or inadvertent?

“If an employer makes improper deductions from employees’ pay (as opposed to isolated or inadvertent improper deductions), the salary basis rule will not be met during the time period in which the improper deductions were made for employees in the same job classification working for the same manager(s) responsible for the actual improper deductions. Therefore, the affected employees will not have been paid on a salary basis as required for exemption during that time-period.

How do you distinguish between isolated or inadvertent improper deductions and an actual practice of making improper deductions?

“A practice of making improper deductions demonstrates that the employer did not intend to pay employees on a salary basis. The factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to:

• The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline.
• The time period during which the employer made improper deductions.
• The number and geographic location of employees whose salary was improperly reduced.
• The number and geographic location of managers responsible for taking the improper deductions.
• Whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.

“If an employer has a clear policy prohibiting improper pay deductions that includes a complaint mechanism, reimburses employees for any improper deductions and makes a good faith commitment to comply in the future, the salary basis of pay will not be violated unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints.

What if the employer does not reimburse the employee for the deductions?

“If the facts show that the employer has a practice of making improper deductions and the employer fails to reimburse employees for any improper deductions or continues to make improper deductions after receiving employee complaints, the salary basis rule is not met and the exemption is lost during the time period in which the improper deductions were made for employees in the same job classification working for the same manager(s) responsible for the actual improper deductions.”

Readers lucky enough to have to comply with California’s laws can go to http://www.dir.ca.gov/dlse/FAQ_Deductions.htm for more information.

What causes the accommodation process to break down? Job Accommodation Network (JAN) studies on the costs and benefits of job accommodations for people with disabilities show that there are three major hurdles to effective job accommodation solutions:

Hurdle #1. Lack of information on what medical documentation an employer can request. Employees might not understand that their employers can request them to provide certain medical documentation in response to an accommodation request, and if they fail to do so, they might not be entitled to the needed accommodation.

To determine whether a particular employee has a disability, you may request medical documentation that shows whether the person has an impairment that substantially limits one or more major life activities. You may require that this documentation come from an appropriate health care or rehabilitation professional, including — but not limited to — doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

For more information on medical exams and inquiries, including forms for employers, individuals, and medical professionals, visit http://AskJAN.org/topics/medexinq.htm.

Hurdle #2. Lack of clarification on determining the essential functions of a position. Employees might request the removal of an essential job function without realizing that this isn’t required as a reasonable accommodation.

You may require an individual with a disability to meet the skill, experience, education, and other job-related requirements of a position, including the performance of its essential functions with or without an accommodation. To determine whether a job function is essential, begin by determining if the employee in the position is actually required to perform the function. According to the Equal Employment Opportunity Commission, other criteria include: (1) a limited number of other employees available to perform the function or among whom the function can be distributed; and (2) the need for special expertise or ability to perform the function. To determine whether a job function is essential, consider these factors:

• The employer’s judgment
• A written job description prepared before advertising or interviewing applicants for a job
• The amount of time spent performing the function
• The consequences of not requiring a person in this job to perform a function
• The work experience of people who have performed the job in the past and are currently performing similar jobs.

Although employers are not required to eliminate an essential function, lower production standards, or provide personal use items, they can do so if they wish. For information on identifying the essential functions of a job, including other relevant factors and examples, visit http://AskJAN.org/links/ADAtam1.html#II.

Hurdle #3. Lack of agreement on effective reasonable accommodations, including the role of temporary accommodations, leave time, and reassignment. Employees might reject an offer of reassignment, not realizing that reassignment to a vacant position is a form of reasonable accommodation when there is no accommodation available in the current position.

In most situations, you should first consult with the employee who requested the accommodation to clarify what the individual needs and identify the appropriate reasonable accommodation. The employee will often be the best resource for information about accommodation needs. By talking with the employee who requested the accommodation and obtaining medical information if needed, you should be able to identify the problem, which is the first step in determining effective accommodation solutions.

Once you have identified the employee’s limitations and abilities, the next step is to determine how they impact the employee’s ability to perform the job. To make this determination, consider what specific job tasks, work environments, equipment, or policies are creating barriers to successful job performance. It might sometimes be necessary to go beyond a traditional job description and consider other factors, such as the equipment used to perform a task, where the work is performed, and why certain policies are being followed.

Once you have identified the employee’s limitations and abilities and determined how they impact job performance, you’re ready consider accommodation options, such as temporary accommodations, leave time, and reassignment.

For more information on determining accommodations, see: JAN’s Five Practical Tips For Providing And Maintaining Effective Job Accommodations at http://AskJAN.org/media/FivePracticalTips.doc.

You can often avoid these hurdles by discussing the situation in advance and expedite the process by understanding your rights and responsibilities. To discuss your case in detail, contact JAN directly for one-on-one consultation.

Thanks to JAN Principal Consultant, Beth Loy, Ph.D.

From 2009 until recently, the Social Security Administration did not issue “no match letters” — the notices from SSA that alert an employer to a mismatch between an employee’s name and social security number. The SSA halted these letters due to substantial controversy — and litigation — that challenged rules promulgated by the Department of Homeland Security mandating how employers had to respond. Now that the SSA has resumed sending these letters, you need to understand what responses are and are not appropriate.

A mismatch between an employee’s name and SSN might be due to a simple mistake (a misspelled name, oversight in registering a name change with the SSA) or illegality (an undocumented worker using a fraudulent SSN). Under the SSA’s new procedures, employers will get a no-match letter when the individual can’t be reached directly about the discrepancy. The letter states, “This letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual.” The letter warns that taking action against the employee might violate the law. However, failing to take action in response to the letter or taking the wrong action can subject an employer to criminal investigation and prosecution, such as for knowingly employing or “harboring” unauthorized workers if the worker is in the country illegally.

A guidance document from the U.S. Department of Justice’s Office of Special Counsel (OSC) offers these recommendations for employers in responding to these letters:

• Check company records to see if there’s a clerical error.
• Ask the employee to verify the exact name and SSN number on his/her card. Although the OSC guidance does not so state, the no-match letter specifies that, while an employer should ask the employee for this information, “the employee is not required to show you the Social Security card. However, seeing this card will help ensure that the records are correct.”
• If the mismatch remains, have the employee contact the SSA to resolve the matter (and give them reasonable time to do so). An OSC frequently asked questions document notes that, although no statute defines “a reasonable period of time” SSA discrepancies can take up to 120 days to resolve.
• Meet with the employee periodically to learn and document the status of their efforts to address or resolve the mismatch.
• Follow the same procedure with all employees regardless of citizenship status or national origin.
• Review any document the employee offers that demonstrates resolution of the mismatch and submit any corrections to the SSA.

The OSC guidance document also makes these recommendations about what an employer should not do:

• Do not assume a mismatch conveys information about an employee’s immigration status or work eligibility.
• Do not use the letter as the sole basis to terminate, suspend, or take other adverse action.
• Do not attempt to re-verify the employee’s employment eligibility immediately by requesting the completion of a new I-9 based solely on the letter.
• Do not require that employees present specific I-9 documents to address a no-match.
• Do not require employees to provide a written verification report from the SSA as it might not always be obtainable.

Neither the SSA nor the OSC provides any guidance on what to do if the employee is unable to resolve the mismatch. However, consistency in the way you address these issues is critical to avoid violations of anti-discrimination laws (including discrimination based on national origin or immigration status), and you must make decisions about whether to keep employing individuals who can’t resolve the matter. Otherwise, you might face a charge of “constructive knowledge” that you employed undocumented workers. We’d recommend that you work with counsel to develop policies that address these matters and resolve individual “no-match” cases.

Provided courtesy of the Worklaw Network firm Shawe Rosenthal.

Management is concerned about employees meeting the specifications of their jobs. Beyond this, it makes sense to manage your employees so that they motivate themselves to exceed these requirements. Here are some guidelines that can help the cause:

• Be clear about what you expect from employees. One of my favorite questions is: “What are the five most important things you do in your job and how would you know if you are doing then well- without you having to ask me or without me having to tell you?” Until all of your employees can answer this question, they don’t understand their job clearly. Make sure that the employee’s “job description” covers not just what they do, but how they should do it — and what results you expect from them.
• Respect their need to manage their time. Don’t ask employees to waste time on nonsensical or nonrevenue producing tasks. Allow them to work in their highest and best use. If you want employees to grow you must delegate work to them. Even better, invite them to take work away from you and when they do, help them figure out a way to delegate their lowest-value work, perhaps to a new employee, intern, or third party. I would also help employees do a better job of understanding time management. Most managers and employees have not taken time management classes. To join the class I’ll be doing in July, click here. If you can’t make it live as an HR That Works Member, you’ll be able to view the presentation on a stored basis later.
• Help them to understand the difference they make every day. Do your employees understand the “processional impact” of what they do? For example, does the tailor fully understand the joy a well-sewn dress brings to the bride? Does the customer service rep truly understand how good service that they deliver to a client or customer will pay dividends? Do we understand that how we treat each other ends up affecting how we treat loved ones? When we understand these “processional impacts” of our work, we can move closer towards the goal of self-actualization — literally feeling good about the work that we do every day. When employees create connections with fellow employees, customers, clients, vendors, etc. they make their work that much more meaningful.
• Encourage their personal growth. Let employees know what their future at the company can look like and what it would take for them to get there. Then offer them the skill testing and training they need to move forward.
• Consider their health. Whether it’s how you manage your employee health insurance or your wellness program, helping employees do a better job of managing their health will go a long way towards boosting their productivity, attendance records, general mood, creativity, etc. Find out how your health insurance broker can help you install a wellness program at your company.

Those are a few ways in which you can improve your employees’ work experience and gain their commitment. Think of how you can use these factors in your workforce.

When I gave a webinar for nearly 500 CEOs in the Vistage community, they asked me to respond to these questions:

• How do you drive productivity and customer service where the primary delivery is person-to-person?
• Would you address the Employee Free Choice Act?
• When facing downsizing, how do you keep key staff motivated?
• Can you discuss exempt and non-exempt employees?
• What are the best practices for hiring?
• What are the best practices for performance reviews?
• How do you engage employees?
• How do PEOs and outsourcing HR impact employee productivity?
• How do you get managers and supervisors on board when they, as well as employees, focus on this downward economy?
• What are the barriers to changing organizational culture?
• How do you structure a bonus plan that’s objective and motivates everyone, especially top performers?
• What can we do to help departments work together?
• How do you increase productivity and, in general, change corporate culture with an older “veteran” workforce?
• What do we do to calm the nerves of people who remain employee during layoffs? * How do you hold people accountable without making them feel that you’re beating up on them or getting overly defensive?
• What are the best practices for employee retention? What metrics do you monitor? * What’s the most successful method to reduce “blame games?”
• How do you get people to admit responsibility for their actions?
• With our current economic conditions, how do you perceive HR as an asset to an organization, i.e., revenue generating?
• How can I help people with strong and different personality types get along so they can truly listen to one another?
• In a small company where people wear many hats and must adjust expectations quickly, how do you conduct performance reviews?
• What’s the single largest change we could make to improve productivity?
• How do you feel about using profit per employee as a productivity metric?
• What are your thoughts on the pros and cons of telecommuting?
• What are the top five techniques for getting the most from contractors?
• Which Web sites can we use to find information about our specific state laws?
• What are the keys to success for a new work-from-home employee?
• What are the major differences in manufacturing environments versus office or other workplaces?
• How do you keep a pipeline of qualified desirable employees even if there are no openings at present?
• How would you handle operating in a community with high drug use, high turnover and absenteeism?

These questions are similar to those that all employers face — focused on hiring, performance, and retention, HR That Works offers excellent tools in each of these areas to help. So use them today!