With recent regulatory activity, including new overtime rules, a flurry of paid sick leave laws, and new agency guidance on employment discrimination, now is a good time to evaluate your policies and procedures to ensure compliance. Here are six issues to address before the start of 2017.
New overtime rules, effective December 1, 2016, increase the minimum salary required to be exempt from overtime. If you have exempt employees who earn less than $913 per week, you will either have to raise their salaries to the new minimum, or reclassify them as non-exempt (making them eligible for minimum wage and overtime). Now is the time to review employee classifications to ensure your exempt employees are properly classified (they must meet the minimum salary requirement and satisfy certain duties tests).
If you choose to reclassify exempt employees, ensure that you have a mechanism in place to track their hours and that they’re properly trained on your timekeeping policies and procedures. Expressly require employees to record all working time (including time spent checking email, traveling, and in training), and prohibit employees from working while off the clock. Exempt employees may be used to working after hours, so consider mechanisms and training to prevent after hours work.
If you have an overtime policy, review it to ensure it still meets your company’s needs. Most overtime policies require employees to obtain authorization before working overtime. If you require authorization, identify who can grant the employee permission to work overtime (such as their supervisor).
Note: Regardless of your policy, all overtime must be compensated, even if it was not authorized in advance. When an employee works unauthorized overtime, you may discipline the employee, but you are prohibited from withholding overtime pay. Review your policy to ensure it doesn’t expressly state or imply that overtime won’t be paid.
A number of laws protect applicants, employees, interns, and contractors from employment discrimination. This year, multiple states have amended their nondiscrimination laws to offer additional protections and/or expand requirements related to equal pay and pregnancy accommodations. Review equal employment opportunity, sexual harassment, and related policies to ensure they include all protections covered by federal, state, and local law. Keep in mind that certain states, such as California, require employers to have written anti-harassment policies that meet specific guidelines. Check applicable laws to ensure compliance.
The EEOC recently released updated guidance on federal anti-retaliation rules. These rules generally prohibit employers from taking adverse action against individuals for opposing conduct they in good faith believe to be unlawful or for participating in investigations of alleged violations. Review the guidance carefully, consider the following questions, and determine whether changes to your policies are necessary:
- Do you have a separate anti-retaliation policy?
- Do your anti-discrimination policies expressly prohibit retaliation?
- Is retaliation clearly defined in the policy?
- Does the policy give examples of protected activity and actions that may be considered retaliatory?
- Does the policy expressly require employees to report violations and provide multiple avenues for filing complaints?
Sick Leave Practices:
More than 30 states and local jurisdictions have enacted laws giving employees the right to sick leave (see Jurisdictions with Paid Sick Leave in HR411’s Compliance Database). Additional jurisdictions will consider these laws during the November election. If there is a requirement that applies to your employees, make sure you have a policy that addresses the following elements and complies with all applicable laws:
- Whether the leave is paid or unpaid;
- The circumstances in which employees can take leave (typically to care for themselves or a family member);
- How much time they can take per year;
- Requirements for providing notice;
- How the leave accrues; and
- Whether the time carries over from year to year.
Remember to review these and other policies on a regular basis to ensure they are up to date with current laws, regulations, guidance, and your business needs. Our Employee Handbook Wizard reflects current federal and state employment requirements. See the Policy Alerts section of the Wizard for a list of recent changes we’ve made, including new or updated policies. When you make changes, distribute the updated policy to employees and obtain employee acknowledgments. Keep a copy of handbook acknowledgements in employees’ personnel files.