FAQ HR Questions

HR Question of the Month

November 2019

Holiday Party HR Q & A

The employer has direct and vicarious liability to any incidents that may occur when serving alcohol. This can expand from personal injury to criminal acts, for example, driving while intoxicated or assault.

(November 2019)

 According to the IRS, cash or “cash equivalents” (such as gift cards) are always taxable. However, you can exclude the value of a de minimis benefit you provide to an employee. If you offer the employee a different type of recognition reward (such as a dinner out or tickets to an event), it may not be taxable. While the IRS doesn’t specifically put a dollar value on what constitutes “de minimis,” the definition of a de minimis benefit is “any property or service you provide to an employee that has so little value (taking into account how frequently you provide similar benefits to your employees) that accounting for it would be unreasonable or administratively impracticable. Cash and cash equivalent fringe benefits (for example, use of gift card, charge card, or credit card), no matter how little, are never excludable as a de minimis benefit, except for occasional meal money or transportation fare.” For more information, the IRS Publication 15-B Employer’s Tax Guide to Fringe Benefits for 2016 offers a chart that shows the tax excludable value of some fringe benefits.

(November 2019)

Besides the employee who caused the accident, the court would assign responsibility for the employer’s part in providing alcohol to the employee based on the facts of the situation. Specifically, if the employer-sponsored event had witnesses that company representatives offered the employee a taxi voucher or other safer method of transport from the party that the employee declined, this could mitigate the employer’s risk. The court could also still assign some responsibility to the employer because the employer knew the employee was impaired, had declined the employer’s options for safer transportation, and still allowed the employee to leave the party.

To mitigate company risk, a company manager should meet with the intoxicated employee privately, explain that there is no judgment and the company cares about him and wants him to be safe. Don’t take “no” for an answer and simply call the taxi.

(November 2019)

Disclosure

Below are actual HR questions that businesses just like yours have asked our HR Advisors. Our Advisors provide the most up to date compliance answers at the time when the question is asked. Due to the frequency of regulations changing, the following is not intended to be used as legal or compliance advice.

These HR Q&A allow you to see the variety of business compliance questions asked and the quality of our HR Advisor answers. If you have a specific HR question, contact us to receive professional support.

HR Q&A

Our HR Advisors not only answer your question and provide the proper resources for reference, they also record the conversations and send you an email translation after the call so you can reference their answer anytime. 

According to Title VII of the Civil Rights Act, covered employers must make reasonable accommodations for employees’ religious observances. The act generally applies to employers with 15 or more employees, although some state laws may create similar obligations for smaller employers.

The act clearly states that an accommodation for an employee’s religion must be made unless the employer can demonstrate that they are unable to reasonably accommodate the religious observance without undue hardship. According to the Equal Employment Opportunity Commission (EEOC) “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

NOTE: Federal law does not require employers to compensate employees for time taken off in observance of a religious holiday, practice, or belief. However, an employer must offer the same options for religious holiday requests as it does for other time off requests. 

(October 2nd 2019)

Misclassification of an employee in CA can lead to audits from IRS, CA Franchise Tax Board, EDD as well as issues with workers comp and unemployment claims filed, as will as fines.

In addition to any other remedies available, an action for injunctive relief to prevent the continued misclassification of employees as independent contractors may be prosecuted against the putative employer in court.

Willful Misclassification

According to Cal. Labor Code § 226.8, it is unlawful for any person or employer to engage in:

• Willful misclassification of an individual as an independent contractor. Willful misclassification is avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.

• Charging an individual who has been willfully misclassified as an independent contractor a fee, or making any deductions from compensation, for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment where any of those acts would have violated the law if the individual had not been misclassified.

Penalties and Enforcement

Engaging in willful misclassification incurs the following penalties enforced by the California Labor and Workforce Development Agency, court determination, or the California Labor Commissioner:

• Upon first violation, the person or employer will be subject to a civil penalty of between $5,000 and $15,000 for each violation, in addition to any other penalties or fines permitted by law.

• Upon recurrence or a pattern of violations, the person or employer will be subject to a civil penalty of between $10,000 and $25,000 for each violation, in addition to any other penalties or fines permitted by law.

• The Contractors’ State License Board will be notified of a violator that is a licensed contractor and the board will initiate an action against the licensee.

Any administrative or civil penalty or disciplinary action remains in effect against any successor corporation, owner, or business entity that:

• Has one or more of the same principals or officers as the person or employer subject to the penalty or action.

• Is engaged in the same or a similar business as the person or employer subject to the penalty or action.

(October 19th 2019)

In accordance with the Affordable Care Act’s (ACA’s) employer shared responsibility provision (so-called “play or pay” rules), there are two measurement methods to determine health coverage eligibility: the monthly method or the look-back method. Under the look-back method, employees who averaged at least 30 hours per week in the measurement period are deemed eligible for the subsequent stability period, even if their hours are reduced to fewer than 30 hours per week. In other words, if an employee chooses to enroll, their medical plan coverage will automatically continue for the entire stability period.

Further, if the coverage is part of a cafeteria plan (which allows employees to make pretax contributions), they would not be able to drop the coverage since their eligibility has not changed. Fortunately, the IRS recognized that employees in a stability period whose work hours are reduced could become stuck in a plan they no longer want or can afford. So, the IRS revised the cafeteria plan rules to give the employer the option of amending its plan to allow employees to drop coverage if certain criteria are met.

Specifically, an employee may elect to drop coverage due to the reduction in hours, provided the employee intends to enroll in another plan providing minimum essential coverage with the new coverage effective no later than the first day of the second month following the date the original coverage is dropped.

To recap, the employer’s cafeteria plan may allow an employee to drop medical coverage (but not dental/vision coverage or a health flexible spending account (HFSA)) during the stability period if:

  • The employee has a change in employment status and will reasonably be expected to average less than 30 hours of service per week; and
  • The employee intends to enroll in another medical plan (such as a spouse’s plan or a Marketplace plan) by the start of the second month after dropping this employer’s plan.

To allow this election change, the employer must amend its § 125 cafeteria plan and adopt the amendment by the end of the plan year in which the election change is allowed. The employer also must inform all cafeteria plan participants of the amendment.

While there is no law that prohibits employers from mandating flu shots — and in some states, the law requires all healthcare workers to get flu shots — you should carefully determine if the benefits to your business outweigh the risks. There has been a rise in litigation brought by employees who object to this requirement for medical, religious or personal reasons. The Equal Employment Opportunity Commission (EEOC) has filed or joined several lawsuits over claims that inflexible mandatory vaccination policies are discriminatory.

Employees may be entitled to exemptions from a flu shot policy for medical reasons under the Americans with Disabilities Act (ADA) or religious reasons under Title VII of the Civil Rights Act of 1964. Requests for exemptions must be evaluated individually yet treated consistently; a difficult task. You will need to engage in an interactive process with the employee, just as you would for any other request for accommodations, to determine if they can be granted without presenting undue hardship to your company.

The EEOC recommends against mandatory flu shot policies, instead suggesting employers encourage employees get vaccinated on their own. Offering no-cost flu shots on site can further improve workplace vaccination rates by making it more convenient for employees.

If you choose to enact a mandatory flu shot policy, write it carefully to protect your company from the risk of discrimination claims and be sure to run it by your legal counsel. Make sure the policy:

  1. Is worded concisely.
  2. Outlines the reasoning behind the policy.
  3. Is applied consistently. (Managers who enforce it should be trained on the policy and how to handle requests for exemptions.)
  4. Explains the process for requesting exemptions due to medical contraindications or sincerely held religious beliefs. Any medical information obtained as part of the request for an exemption should be kept confidential.

Most cases of the common flu do not meet the definition of “serious health condition” and would not be eligible for Family and Medical Leave Act (FMLA) leave.

Some cases of the flu, however, are severe or result in complications, and these have the potential to meet the FMLA definition of “serious health condition.” This is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Continuing treatment means:

  • The employee has been incapacitated for a period of more than three full days; and
    • Consults with a doctor two or more times within 30 days, or
    • Has one consult with a doctor and a regimen of continuing treatment.

If an employee is out sick with the flu for more than three days, consider whether the need for FMLA leave may exist. This doesn’t mean that you need to go through the whole FMLA process to determine eligibility for each flu absence; just that you shouldn’t automatically reject FMLA requests for the flu either.

Review each case based on the facts, keep the “serious health condition” definition in mind, and if the illness is severe, ask the employee to submit certification from a health care provider to support the their need for leave protection under the FMLA.

Yes. Paid vacation is not mandatory in any state and the employer has discretion to offer and/or change the policy at any time provided they do not take away any accrued unused balances.  Of course, any reduction in the amount of time employees are provided would result in negative morale issues.  Best practice is to communicate the business rationale clearly and in advance of the effective date.

(July 29th 2019)

California has multiple leave options which can leave businesses confused. These include: the Pregnancy Disability Leave (PDL), the California Family Rights Act (CFRA), and the federal Family and Medical Leave Act (FMLA). Both the CFRA and the FMLA require that employers have at least 50 employees, among other requirements, to qualify for coverage. California’s PDL applies to employers with five or more employees. For employers who don’t have 50 employees but have at least five employees, the requirements are the same and employers must provide PDL.

Employees are entitled to up to four months of PDL per pregnancy. (Cal. Code Regs., tit. 2, § 11042). This leave is in addition to any other leave for which your employee may be eligible under the Fair Employment and Housing Act (FEHA), California Family Rights Act (CFRA), other state laws and local ordinances, or your company’s additional leave policies. If you have a policy which provides more than four months of leave for other disabilities, then you must also provide the same leave options for pregnancy-related disability. Here is a quick reference guide for employees:

Even if you’re not based in New York State or New York City, the new sexual harassment laws now beginning to take effect may apply to your organization. If an employer is located outside of New York and has employees working in New York, the regulation would apply to those employees working in the state of New York. The state and city have different provisions for employee communication and training along with various dates for compliance.

The state law applies to all employers, regardless of size, even if you only have one employee working in New York for one day. This includes remote employees who work from their homes. It also applies to all employees at out-of-state employers with New York State government contracts, even if no one steps foot in the state.

As a client, you have access to the New York Sexual Harassment Prevention Training that satisfies State and City Requirements. 

Exemptions from minimum wage and overtime in Maryland

  1. Immediate family member of the employer
  2. Certain agriculture employees
  3. Executive, administrative, and professional employees 
  4. Volunteers for educational, charitable, religious, and non-profit organizations
  5. Employees under 16 working less than 20 hours per week
  6. Outside salespersons
  7. Employees enrolled as a trainee as part of a public school special education program
  8. Non-administrative employees of organized camps
  9. Certain establishments selling foods and drink for consumption on the premises grossing less than $400,000 annually. 
  10. Drive-in theaters
  11. Establishments engaged in the first canning, packing or freezing of fruits, vegetables, poultry, or seafood. 

New York’s Compassionate Care Act (N.Y. Pub. Health Law §§ 3360 – 3369-e) permits limited use of medical marijuana by individuals suffering from covered medical conditions. Certified patients permitted to use medical marijuana are considered to be “disabled” under the state’s human rights laws. However, the law does not:

  1. Prevent employers from enforcing policies that prohibit employees from performing their job duties while impaired by a controlled substance.
  2. Require employers to take actions that would violate federal law or cause them to lose federal contracts or funding.
  3. Require health insurance plans to provide coverage for medical marijuana.
  4. Require employers to accommodate the use of medical marijuana in workplaces.

 

New York City: Pre-Employment Marijuana Testing Banned

Effective May 10, 2020, a New York City Charter Rule (Int. 1445-2019) prohibits New York City employers from conducting pre-employment drug testing of prospective employees for marijuana. Under the law, it is an unlawful discriminatory practice for a New York City employer, labor organization, employment agency, or agent thereof (employer) to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (THC) or marijuana in his or her system as a condition of employment.

However, this prohibition does not apply to those applying to work:

  1. As police officers or peace officers, or any law enforcement or investigative function.
  2. As construction or demolition workers.
  3. As commercial drivers.
  4. In any position requiring the supervision or care of children, medical patients, or vulnerable persons.
  5. In any position with the potential to significantly impact the health or safety of employees or members of the public. 

Additionally, the law does not apply to drug testing required pursuant to:

  1. Any regulation promulgated by the federal Department of Transportation that requires testing of a prospective employee.
  2. Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant.
  3. Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security.
  4. Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

The New York City Human Rights Commission will create the rules for implementation of this law.

(May 29, 2019)

As the law currently stands, employers in California are still able to retain their current zero tolerance drug policies (including for medical marijuana) for prospective and current employees located in California. Therefore, it is imperative that you look to your current drug policy to determine the appropriate next steps in this case. (If you do not have an updated policy in your Handbook, we can guide you through creating one specific to your company needs.)

Under the current California laws, employers need not accommodate medical marijuana use on employer property or premises or during working hours. Additionally, California courts have held in case law that it is not a violation of public policy or California’s Fair Employment and Housing Act (Cal. Gov’t Code §§ 12900-12996) to dismiss a medical marijuana patient employee from employment because the employee tested positive for a chemical found in marijuana (Ross v. RagingWire Telecomm., Inc., 174 P.3d 200 (Cal. 2008). Employers may maintain policies prohibiting cannabis use by employees and prospective employees.

(Download our State By State Marijuana Law guide on our Free HR Tools page for more information.)

Due to the evolving laws in this area, we strongly recommend as a general best practice that employers consult legal counsel to craft a legally compliant and workable drug policy given the legality of marijuana in California. 

(May 28, 2019)

Even if you’re not based in New York State or New York City, the new sexual harassment laws now beginning to take effect may apply to your business. The state and city have different provisions for employee communication and training along with various dates for compliance.

The state law applies to all employers, regardless of size, even if you only have one employee working in New York for one day. This includes remote employees who work from their homes. It also applies to all employees at out-of-state employers with New York State government contracts, even if no one steps foot in the state.

Final New York State regulations were released October 1, 2018 and the first provisions went into effect October 9, 2018. The New York City law applies to employers with 15 or more employees, and the first provisions went into place September 6, 2018. Further elements of state and city acts will be coming out over the next nine months.

The state law applies to city employers and employees. The city has yet to announce how it will handle application of the state protections, which are broader than the city’s.

For more information about training requirements, policy, and posting visit:

(October 10, 2018.)

In accordance with the Affordable Care Act’s (ACA’s) employer shared responsibility provision (so-called “play or pay” rules), there are two measurement methods to determine health coverage eligibility: the monthly method or the look-back method. Under the look-back method, employees who averaged a minimum of 30 hours per week in the measurement period are deemed eligible for the subsequent stability period, even if their hours are reduced to fewer than 30 hours per week. In other words, if an employee chooses to enroll, their medical plan coverage will automatically continue for the whole stability period.

Further, if the coverage is part of a cafeteria plan (which allows employees to make pretax contributions), they would not be able to drop the coverage since their eligibility has not changed. Fortunately, the IRS recognized that employees in a stability period whose work hours are reduced could become stuck in a plan they no longer want or can afford. So, the IRS revised the cafeteria plan rules to give the employer the option of amending its plan to allow employees to drop coverage if certain criteria are met.

Specifically, an employee may elect to drop coverage due to reduction in hours, provided the employee intends to enroll in another plan providing minimum essential coverage with the new coverage effective no later than the first day of the second month following the date the original coverage is dropped.

To recap, the employer’s cafeteria plan may allow an employee to drop medical coverage (but not dental/vision coverage or a health flexible spending account (HFSA)) during the stability period if:

  • The employee has a change in employment status and will reasonably be expected to average less than 30 hours of service per week; and
  • The employee intends to enroll in another medical plan (such as a spouse’s plan or a Marketplace plan) by the start of the second month after dropping this employer’s plan.

To allow this election change, the employer must amend its § 125 cafeteria plan and adopt the amendment by the end of the plan year in which the election change is allowed. The employer also must inform all cafeteria plan participants of the amendment.

(February 4, 2019)

The federal COBRA rules require offering the same health plan options to COBRA beneficiaries that are offered to similarly situated employees who have not experienced qualifying events. In this case, the dental and vision coverages are bundled as a single enrollment option. That is, active employees can elect or decline the dental and vision coverages as a package but cannot elect the coverages separately. Therefore, the coverages also are bundled for COBRA qualified beneficiaries.

Note that COBRA originally was enacted in the mid-1980s. Years ago, the IRS regulations required offering COBRA beneficiaries the option of continuing medical coverage (called “core coverage”) without continuing dental, vision, or other non-medical coverages, even if the coverages were bundled for active employees. Those regulations were replaced many years ago. Under current IRS regulations, coverages can be bundled for COBRA beneficiaries if they are bundled for active employees.

(February 26, 2019)

The Affordable Care Act (ACA) requires employers subject to the federal Fair Labor Standards Act (FLSA) to provide unpaid, reasonable break time for an employee to express breast milk for a year after the child’s birth. The frequency of breaks needed to express milk as well as the duration of each break will likely vary. Additionally, although employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. The FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time also applies.

Employers are not required to create a permanent, dedicated space for use by nursing mothers. However, employers are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space follows these guidelines. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mothers’ use, it must be available when needed in order to meet the statutory requirement. Of course, employers may choose to create permanent, dedicated space if they determine that is best to meet their obligations under the law.

Resources:

Yes. Nonexempt employees may be paid hourly, salary, commission or fee as long as they are compensated for all hours worked at a rate not less than the state (or local) minimum wage and are compensated at one and one half times their regular rate of pay for all hours worked beyond 40 in the work week (or eight hours in a day for some states). 

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