On most application forms, there is the question “Have you ever been convicted of a felony?” This seems logical because a convicted felon may present a danger to customers and co-workers. Many states and localities, however, do not agree and have banned employers from asking this question until after an employment offer has been made. Two key issues are involved:
1. The so-called “Ban the Box” regulations in some locations,
and
2. The regulations of the Equal Employment Opportunity Commission regarding criminal convictions.
The “Ban the Box” regulations say, to varying degrees, that employers may not ask a candidate about criminal convictions as a part of the normal interviewing and screening process, but must wait until later, after the employer makes a Conditional Job Offer. In these states and localities, the questions regarding criminal convictions should not appear on the application form.
EEOC’s guidelines on criminal convictions do not prohibit asking these questions in the employment process, although they “recommend” against it. However, they do say that if you ask questions about criminal convictions, and/or if you conduct a criminal background check, and if you use this information to make an employment decision, you must consider three elements:
1. Whether the conviction is job related,
2. The severity of the conviction, and
3. The length of time since the conviction occurred.
Taking all of this information into consideration, the employer must then make a judgment call on whether to hire the candidate.
So, the “Ban the Box” regulations and EEOC’s regulations are similar but they are not exactly alike. On the other hand, the momentum in this country, and at EEOC, is clearly in the direction of the “Ban the Box” arena. Therefore, it may be better to have an employment application form that does not contain the criminal conviction questions and deal with criminal convictions and criminal
background reports after a Conditional Job Offer has been tendered. In this way, you still consider the effect of a conviction but you steer clear of the Equal Employment Opportunity Commission.
The new ACA regulations are a moving target with three elements involved: (1) accounting and taxes, (2) insurance, and (3) human resources. Most of HR work involves notifications and most of that should have already been done. The big issues now are accounting, taxes and insurance.
National Labor Relations Board Regulations state that employees have the protected right to discuss their wages, benefits and working conditions among each other and employers may not prohibit them from so doing. Otherwise, it’s called an Unfair Labor Practice. This regulation extends to the personal social networking sites of your employees, like their Facebook page, and some
states have passed regulations prohibiting employers from accessing the personal social networking sites of their employees. Based on all of this momentum, we recommend that employers not access the personal social networking sites of their employees and do not “friend” employees on Facebook.
The current Florida minimum wage is $8.05 per hour and will increase to $8.10 per hour beginning on January 1, 2017. Employees must receive the minimum wage “free and clear” for each work week.
I-9 Forms have been updated and by January 22, 2017, employers must use only the new version, dated 11/14/2016. Until then, you can continue to use the version dated 3/8/2013. For current employees, you may keep the form already on file. Every employee must have a completed I-9 Form within the first three days of employment.
The law requires that employers comply with standards set forth by the Wage and Hour Division of the Department of Labor, the Equal Employment Opportunity Commission, Immigration and Naturalization Service and other applicable local and federal agencies. Are your employee files up to date? For example, here are some of the regulations and the minimum number of employees required for coverage:
Employment Regulation Based on Number of Employees
■ Wage and Hour regulation – 2
■ Immigration Control and the I-9 Form – 4
■ Fair Employment Practices (EEO, Sexual Harassment) – 15
■ Americans with Disabilities Requirements – 15
■ Age Discrimination Regulations – 20
■ Family and Medical Leave – 50
This is only a partial list of the employment regulations that cover American employers and you can see that these requirements begin with very few employees and increase, based on the total number of persons you employ.
An application form should not contain any questions which are prohibited by state or federal employment regulations, or are considered EEO (Equal Employment Opportunity) sensitive. Employment forms should not solicit information on an applicant’s sex, race, color, national origin, age, religion, disability, citizenship status, veteran’s status or marital status. By avoiding this information, you will not make the mistake of producing documentation that can work against you in an employment related claim.
In the state of Florida, if an employee signs an acknowledgment of a probationary period within the first seven (7) days of employment and the employment relationship is terminated within the 90-day probationary period, the employer is not responsible for any portion of unemployment compensation due to that employee. It is recommended that all newly hired employees sign this
form and that it be placed in their personnel file for purposes of fighting an unemployment compensation claim. Speaking of unemployment, there are generally three circumstances in which an employer is not responsible for paying unemployment compensation.
1. When the employee is terminated within the 90-day probationary period;
2. When the employee voluntarily resigns; and
3. When the employee is terminated for gross misconduct.
That’s why it’s so important to terminate employees (not working out) within the first 90 days of employment. Once they cross the 90-day probationary period, they either have to voluntarily resign or be terminated for gross misconduct for you not to be subject to their unemployment claims. Employers must also remember to document any performance issues an employee may have within the 90-day probationary period. Many employers assume that if they release an employee within this period they do not have to provide documentation as to why the employee was released, but this is false. Employers are still responsible for providing documentation as to why the employee was let go.
Time records represent the base or foundation from which an employer calculates a non-exempt employee’s work time. The time record should be a mirror image of actual time worked and the responsibility for ensuring accurate records falls on the employer, not the employee, even if the employee records time incorrectly. If a time record is incorrect, or if it appears incorrect, a wage and hour investigator is free to disregard it and “construct” an amount of time he believes your employees have been working. The Department of Labor calls this concept “constructive overtime” and it’s usually a figure that is much higher than the one originally found on the time record. This enforcement policy underscores the importance of accurate time records for non-exempt employees.
According to Wage and Hour regulations, time records must meet two requirements:
■■ They must be accurate and,
■■ Employees must complete them on a daily basis.
The Wage and Hour regulations do not prescribe a specific time method; thus, there is no requirement for an employer to provide a time clock that employees “punch” every day. To the contrary, most non-exempt employees today keep time by logging in on the computer, by swiping an identification card, by hand or by some other method. In order to meet Department of Labor requirements,
these employees should have a time keeping method that records the exact time they come to work in the morning and leave from work at the end of the work day, including meal periods. For payroll purposes, time can be rounded off to the nearest 15 minutes.
In Florida, there is no requirement for employers to provide lunch or break periods to employees 18 years of age or older. However, if a break is to be unpaid, it must be at least 30 consecutive minutes and the employee must be fully relieved of duty. For example, a receptionist who is required to answer the phone during a break is considered to be working and the time should be counted as work time. A break cannot be interrupted. An example of interruptions are as follows: an employee eating lunch at their desk interrupted by a customer, or a supervisor requesting an employee to perform work right away while they are in the middle of their break. The 30 minutes must start over after the interruption if the break is to be unpaid.
For more Human Resource and Employment Documents, FRSA Members can visit the “Member Login” section of FRSA’s website, www.floridaroof.com and access the “Human Resources Q&A” section. You’ll find frequently asked employer questions and answers.
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