SmartHR

How to Implement a Workplace Breastfeeding Policy

March 19, 2012 – 12:57 pm | By Liza Casabona | No comments yet

The letter of the law may only require employers to extend breaks and access to a lactation room to eligible employees on an as needed basis, but many companies are taking a proactive approach and looking to implement policies that will boost employee retention. According to Eileen Shue, vice president of corporate resources for the Mishawaka, Ind.-based Sterling Group, a comprehensive lactation policy could specify, for example, that:

• A breastfeeding mother will be accommodated for up to a year after the birth of the child;
• Breastfeeding mothers will be given a reasonable number of breaks of a reasonable length to express milk;
• Breaks up to 20 minutes are paid and those longer than 20 minutes will be unpaid and recorded on an employee’s timesheet;
• A small refrigerator for storing the expressed milk is available;
• Any breast milk stored in the refrigerator must be labeled and dated, and all stored milk is the responsibility of the employee (including improper storage, refrigeration and tampering);
• Products that don’t conform to storage rules may be disposed of;
• Nursing mothers with private offices that have doors that lock will be asked to use their office;
• Employees who don’t have a private office will have access to a private conference room as needed and must reserve it; and
• The private conference room will have a lock and “do not disturb” sign available.

The Department of Health and Human Services has also posted a sample policy online on its women’s health focused website. The sample policy is at:  http://www.womenshealth.gov/breastfeeding/government-in-action/business-case-for-breastfeeding/policy-for-supporting-breastfeeding-employees.pdf. We will be running a series of posts about the new lactation policy, best practices and industry responses in the next several weeks. Search for posts using the word “lactation.” Subscribers to Thompson’s FLSA library should look to their newsletters for an in depth package about the new policy, including many features that won’t appear on the blog.  

Why You Need a Retaliation Prevention Policy

March 19, 2012 – 12:48 pm | By Khristine Scholtz | 2 comments

Employee retaliation claims are skyrocketing, and in 2011 these claims were the number one complaint to the EEOC. As a result, you need to know how to prevent retaliation claims from happening. At SHRM's legislative conference in Washington, D.C. earlier this month, California employment attorney Jody Katz Pritikin, presented tips on how to prevent and defend against employee retaliation claims. First, good recordkeeping is key to an employer’s defense, and is a good practice for all employers. In the event that an employee needs to be terminated, the employer can feel safe that its decision to terminate is well-documented and supported by written warnings or other records. Second, employers must have a retaliation prevention policy. Again, this is the number one claim at the EEOC—it is a good business practice to educate employees and management about what retaliation is and how to prevent it. In their policy, employers should do the following:

• Make a stand-alone commitment in the policy that says the company will not tolerate retaliation by anyone.
• Define retaliation, and give specific examples of retaliatory behavior.
• Outline a complaint procedure that is consistent with other procedures, and make sure there are multiple avenues available for employees to make a complaint.
• Name an ethics officer or ombudsman—but be sure the complaint procedure is centralized so that everyone in the company is on the same page.
• Do not promise confidentiality; rather, tell the complainant that the complaint will be disclosed on a “need-to-know” basis. This is necessary because there needs to be fairness for both the accused and the accuser: if the accused is to respond to a complaint, he/she needs to know who the complainant is and what specific actions are being alleged.
• Set forth the consequences for violations, and administer those consequences fairly and consistently.

Of course, not all retaliation claims will be prevented. But with a policy in place, employers will have a workforce that is aware of what retaliation is and what can happen if the policy is violated. Employers need to be actively involved in their workplaces, and creating retaliation prevention policies is a first step toward creating a more aware (and compliant) workplace.    

No Matter How You Pay Them, Tips Belong to Employees

March 19, 2012 – 12:45 pm | By Khristine Scholtz | No comments yet

Even non-exempt employees can cause confusion and employer liability under the FLSA. Often, employers run into trouble when attempting to classify their employees for purposes of pay exemptions. But equally tricky is how to pay non-exempt employees who have non-traditional forms of payment, such as tipped employees. The recent slew of major FLSA wage and hour cases (most notably Top Chef Mario Batali’s $5.25 million dollar settlement with his employees!) related to tipped employees shows that employers nationwide are confused about how to properly pay tipped employees, particularly those who work in restaurants. The New York Attorney General’s Office, after investigating a Manhattan restaurant and nightclub, found that the restaurant paid workers less than minimum wage, denied them overtime pay, illegally distributed tips to management, and fired employees who complained about the pay practices. In a settlement agreement with New York Attorney General Eric Schneiderman, the restaurant must pay $200,000 to those employees. The settlement was particularly noteworthy because it involved New York’s recently-enacted Wage Theft Prevention Act. The new law creates additional remedies for workers, and a significant portion of the settlement was based on new remedies available only under the new law. Other states are seeing wage and hour violations with regard to tipped employees, too. In Colorado, for example, several restaurants have been sued for failing to pay workers minimum wage and overtime, and (as in the New York investigation) for illegally distributing tips. Under the FLSA, the only employees who can collect from a tip pool are workers who regularly receive tips, such as servers or bartenders. The Colorado suits allege that chefs, dishwashers and food preparers — who were not regularly tipped — also participated in the tip pool. To that end, the DOL recently addressed the FLSA’s discussion of employee tips. The DOL memorandum, “Enforcement of 2011 Tip Credit Regulations,” explains its 2011 regulations and disagrees with earlier Ninth Circuit interpretations of the FLSA’s provisions regarding tipped employees. Prior to the DOL regulations and memorandum, the FLSA was silent on the topic of how to pay tipped employees when the employer does not apply tips to satisfy minimum wage requirements. In the absence of FLSA guidance, the Ninth Circuit ruled that the FLSA’s restrictions on the use of employees’ tips do not apply when the employer does not take a tip credit. The Ninth Circuit’s ruling reflected a gap in the FLSA: how employees’ tips may be used when the employer does not take a tip credit. Now, the DOL has filled that gap, and those Ninth Circuit rulings are no longer the law in that jurisdiction. After the DOL interpretation, a tip is the sole property of the tipped employee, regardless of whether the employer takes a tip credit, and the employer is prohibited from using the employee’s tips in any way other than those prescribed by the FLSA. Under the FLSA, “tipped employees” are those who regularly receive more than $30 a month in tips. Tips actually received by tipped employees may be counted as wages, but the employer must pay at least $2.13 an hour in direct wages. If an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference. If an employer chooses to count tips against the employee’s minimum wage, the employer must: 1) Inform each tipped employee about the tip credit allowance (including amount to be   credited) before the credit is utilized. 2) Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined. 3) Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement. The FLSA prohibits any arrangement where any part of the tip received becomes the property of the employer. Again, a tip is the sole property of the tipped employee. Where an employer does not strictly observe the FLSA’s tip credit provisions (above), no tip credit may be claimed and the employees are entitled to receive the full cash minimum wage, in addition to retaining tips they may have received.

IRS Voluntary Classification Settlement Program: Proceed With Caution

March 19, 2012 – 12:38 pm | By Khristine Scholtz | No comments yet

In a recent move to encourage employers to correct past misclassification of workers, the IRS has established a voluntary compliance program, called the Voluntary Classification Settlement Program, or VCSP. The program permits employers to voluntarily reclassify their workers as employees for future tax periods with minimal tax liability for past non-employee treatment. To participate, an employer must apply to the program. An employer is eligible to apply if it (1)    consistently treated the workers as nonemployees and filed all required Forms 1099 for the previous three years; (2)    is not under audit by the IRS; and (3)    is not under audit by the Department of Labor or any state agency with respect to the classification of workers. If the IRS accepts an employer’s application, the employer only pays 10 percent of the federal employment tax liability that may have been due on compensation paid to the workers for the most recent tax year, determined at reduced rates. The employer will not be liable for any interest or penalties on the assessed liability and the employer will not be subject to an employment tax audit with respect to the worker classification for any prior years. Finally, the employer must agree to extend the statute of limitations for assessment of employment taxes. While the lessened payments are an attractive benefit, many shrewd employers wonder: What if my application is not accepted? It is a big gamble for any employer to take, particularly when a denied application would then put the IRS on notice of an employer’s prior misclassification. To this question, the IRS has only said that the rejection of a VCSP application will not automatically trigger initiation of an audit. But what does “automatically” mean? If the employer is audited for another reason, the employer will have provided the IRS with details of a potential misclassification and information that could be used against the employer in the audit. Another concern employers have voiced is that the VCSP does not address any liability under state or local tax laws. Thus, filing an application to the VCSP could lead to an audit by state tax agencies for prior tax years. While it is sometimes true that “no good deed goes unpunished,” additional clarification on the program is expected from the IRS, which perhaps will ease the minds of employers. As always, employers should proceed with caution and seek the advice of an attorney before applying to the VCSP. More information about the program is available at the IRS website, www.irs.gov/businesses/small/article/0,,id=246013,00.html.