For however long the global coronavirus (COVID-19) crisis lasts, employers may have to grapple with what to do when an employee tests positive for the disease. This checklist can help an employer navigate the many considerations involved. Employers should complete the following steps in sequential order.
Respond to a Positive Coronavirus (COVID-19) Test Checklist
- Express Empathy
- Show humanity since this will be an upsetting time for the employee.
- Let them express their feelings.
- Advising an Employee to Self-Quarantine
- Inform the employee that they should self-quarantine for at least 10 days.
- Prohibit the employee from coming to their worksite's physical location during that time.
- Alert the employee that they may use available leave time, including emergency paid sick leave or emergency paid family and medical leave (if the employer has fewer than 500 employees) under the Families First Coronavirus Response Act (FFCRA).
- Inform the employee that they may work remotely if their symptoms do not prevent them from doing so and if telework is an option.
- Act Quickly
- Ask the employee who they have been in close contact with in the past 14 days.
- Remove the employee from the physical workspace if they are not already working remotely.
- Warn coworkers, vendors or third parties with whom the infected employee may have come in close contact.
- Advise those individuals that they may wish to be tested for COVID-19.
- Keep Individual's Identity Confidential
- Inform close contacts of the employee's diagnosis without identifying the infected individual by name.
- Avoid references that would lead coworkers to guess the employee's identity.
- Arrange for Cleaning of the Employee's Workspace
- Clean the individual's workspace thoroughly if the employee was working at the employer's physical location as opposed to remotely.
- Professionally clean surrounding common areas that the employee may have visited, including breakrooms, bathrooms, and elevators.
- Instruct other employees to disinfect their personal work areas.
- Consult the Latest Guidance from the CDC and OSHA
- Be aware that recommendations from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) may change during this crisis.
- Make sure you consult the latest CDC and OSHA guidance applicable to the particular circumstances.
- Consult applicable guidance from state and local health officials (e.g., information around assistance with the testing of other employees).
- Encourage the Employee to Consult a Health Care Provider
- Encourage an employee who has tested positive for COVID-19 to consult a health care provider before returning to work.
- Advise the employee that they may not return to work until they have been symptom-free for at least 72 hours, without the aid of fever-reducing medication.
The COVID-19 situation is constantly changing, and guidance from the Centers for Disease Control and Prevention (CDC) and other health officials, may shift as well over time. Employers should regularly consult guidance not only from the CDC, but from the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) throughout the course of this pandemic to ensure they are complying with the most updated guidelines.
The CDC defines "close contact" as a person that has been within six feet of the infected employee for a prolonged period of time.
Consider teleworking options whenever possible. Employers have a duty to provide a safe workplace and should err on the side of caution before allowing an individual who has tested positive for COVID-19 to return to work.
At the same time, employers must ensure that they take all necessary steps to protect the identity of any employee who has tested positive for the coronavirus to the extent possible. Various laws protect against the release of this information. Thus, while employers should inform any affected coworkers of their possible exposure in the workplace, they should not reveal the identity of the employee(s) who tested positive.
Workplace betting pools, fantasy leagues and bracket challenges can be popular at workplaces throughout the year, with key events like the Super Bowl and the NCAA College Basketball Tournament providing opportunities for gamesmanship and team-building.
While these activities can foster excitement in the workplace and allow employees to find common ground on issues outside of work, an employer should be aware of the downside of office pools.
Here are some key tools and resources to help an employer manage employees effectively and reduce the risk of liability:
Workplace Policies and Rules
An organization’s approach to workplace betting pools and watching sports events during working time varies based on business goals, available resources and the nature of the work being performed. Often, scheduling workplace events around sports playoffs may foster team-building opportunities and encourage positive employee relations.
However, events that happen during the workday (March Madness or the Olympic games, for example) often present distractions for workers that may affect their productivity and deliverables.
For diehard fans, there is also the potential for strained co-worker relationships (e.g., sore winners or losers).
An employer has a number of options available when addressing betting pools, workplace gambling and fantasy sports leagues. For an employer particularly concerned with its image, reputation and resources, a complete ban of any workplace gambling may be in order. Other employers may choose to allow pools so long as no games are actually viewed during working time or while using employer-provided devices or networks.
However, an employer should be aware that some states may have specific rules regarding gambling that could affect specific workplace policies and practices. In addition, when dealing with an employee with a potential gambling addiction, an employer should take note that gambling addictions are not recognized as disabilities under federal and state disabilities laws and may be excluded from benefits coverage.
Employers may wish to institute a policy specifically addressing betting pools, workplace gambling and fantasy sports leagues.
Supervisors need to be keenly aware of the employer’s policies and work rules regarding office pools, use of employer resources in making bets or streaming sports events, attendance, discipline and any other applicable policies.
For example, a supervisor may need to know whether an employer’s nonsolicitation policy applies to a March Madness pool. If an employee is found to be engaging in online gambling during working hours, a supervisor may need to take action.
In addition, an employer’s liability risks may rise if supervisors engage in ineffective performance management.
Work Rules and Discipline Procedures
It’s not enough for an employer to address gambling in a policy manual or employee handbook. These policies and rules must be enforced in a fair and consistent manner in order to further the employer’s business goals.
There are a number of considerations when deciding how to manage an employee with a potential gambling problem or address chronic absenteeism. Often, employee discipline should not be the first step when dealing with an issue.
However, because betting pools and workplace gambling may lead to a number of liability risks for the employer, supervisors should follow best practices when discipline becomes necessary.
The IRS released the completely redesigned calendar year 2020 Form W4, Employee’s Withholding Certificate, on December 4, 2019. The form was overhauled to comply with the 2017 federal tax reform law, which suspends personal exemptions and withholding allowances through 2025. The IRS will release the 2020 withholding tables and methods later in December in Publication 15-T, Federal Income Tax Withholding Methods. (The IRS will no longer publish the tables in Notice 1036, Early Release Copies of the Percentage Method Tables for Income Tax Withholding.)
Employers use Form W-4 to calculate each employee’s income tax withholding. On prior versions of the form (i.e., 2019 and earlier years), an employee’s income tax withholding was determined by the number of withholding allowances the employee indicated on the form and the employee’s tax status – single, married filing jointly or married but withholding at the higher single rate.
Beginning in 2020, an employee’s income tax withholding is determined based on the employee’s tax status and adjustments (allowances have been eliminated). The 2020 form also contains a new tax status: Head of Household.
The 2020 form is based on five steps. Only Steps 1 and 5 are mandatory for employees to complete:
Step 1: Enter Personal Information. With the exception of the new Head of Household tax status, the information employees must enter is no different from previous years’ Forms W-4;
Step 2: Multiple Jobs or Spouse Works. Employees who work more than one job or employees in dual-income households may complete this step to account for the additional income and taxes. Completing this step will increase an employee’s income tax withholding;
Step 3: Claim Dependents. Employees may take credit for their tax dependents or other credits in this step. Employees who choose to complete this step will lower their income tax withholding. On prior versions of Form W-4, employees could lower their withholding by increasing their withholding allowances to account for dependents;
Step 4: Other Adjustments. Employees may account for other income, such as capital gains and other deductions in this step. Employees who complete this step may raise or lower their income tax withholding depending on whether they are accounting for other income or other deductions, respectively. Employees who want more income taxes withheld from their pay may enter a flat amount on Line 4(c); and
Step 5: Sign here. Employees must date and sign the form under penalty of perjury.
Employees who want to claim an exemption from withholding must write the word “Exempt” underneath Line 4(c). Employers are encouraged to remind employees who claimed an exemption from income tax withholding to refile Form W-4 every year, by February 15, if they want to continue the exemption.
Similar to previous versions of Form W-4, the 2020 form includes worksheets for multiple jobs and deductions that employees can complete to ensure that their withholding more accurately reflects their income and taxes.
New employees starting work on or after January 1, 2020, and employees who must update Form W-4 to account for changes to marital status or tax dependents, must complete and submit the 2020 form to their employers. Employees hired before January 1, 2020, and employees who do not want to change their existing Form W-4 from a previous year, are not required to submit the 2020 Form W-4 to their employers.
Performance management is rapidly evolving. While it’s true that the traditional, annual review is still useful, it’s not enough to keep up with the modern workplace. The best employee performance reviews are positive experiences that motivate and drive high performance. But creating that kind of experience is easier said than done for most managers.
Here are 7 performance review tips:
- Start with a Coaching Mindset
The first step toward better performance reviews is to start with a coaching mindset. Many managers are used to acting as judges or evaluators — but this isn’t the most effective approach.
Show your employee that you’re on the same team, and that you want to help them improve. Your goal should be to help employees and ultimately your organization.
- Talk about performance regularly
Don’t wait to offer feedback. If an issue with performance exists, address it right away. When managers and employees only converse about performance once a year, there’s room for discomfort and anxiety. Ongoing performance conversations shift the focus forward. Managers can coach, motivate, modify behaviors, adjust goals, and recognize employees in real-time. This creates a more positive experience for managers and employees.
The annual performance review still has a place — but you need to supplement it with ongoing performance conversations.
- Share your notes before the review
Set everyone up for a more effective performance conversation by allowing time for preparation. Let your employee know topics or events you want to discuss, data points you want to review, questions you want answered, and anything else relevant to the employee’s performance.
Remember this is a two-way conversation, so make sure you are facilitating a dialogue, and actually listening. Be aware of emotions, ask questions, repeat what you heard, don’t be defensive and get comfortable being uncomfortable.
- Be Transparent
Employees should know exactly how their performance is measured. Managers and employees should have a shared understanding of what good performance looks like. Provide clarity around each employee’s role and how the organization perceives their contributions.
- Establish Clear Expectations and Use Examples
When giving performance feedback, be specific and share examples. Providing context empowers employees to repeat positive performance and address poor performance.
Don’t use generalizations like “always” or “never.” Even with positive feedback, the words “always” and “never” are too general and rarely helpful. Without context, an employee can’t be certain about what exactly was good about their work.
Make sure to discuss how the employee’s performance or behavior has impacted their overall performance, their team, or the organization. This additional context helps employees understand the effects of their performance — both good and bad.
- Define the Next Steps
Possibly the most important tip of all is to define next steps. Without clear next steps, performance conversations feel unresolved. If you want your review to actually improve performance, creating next steps is vital. Together, create a clear plan around what happens next. Set goals and deadlines and document the plan in a place you both can access.
A majority of states have legalized medical marijuana, and a growing number now permit recreational marijuana use as well. So what do these legalization laws mean for employers that wish to conduct drug tests of job applicants and/or their employees?
Maintaining a drug-free workplace remains an important priority, as drug usage can create safety concerns and impaired performance. However, complying with these state laws also is critical. The good news for employers is that these state measures generally do not restrict them from maintaining a drug-free workplace.
Here are some key steps an employer can take to implement a legally compliant drug and alcohol testing program.
- Know When to Test
Under the Americans with Disabilities Act (ADA), an employer may not conduct a medical exam or make medical inquiries until after an employer extends a conditional job offer and only if the tests are job-related and consistent with business necessity.
While drug testing does not constitute a medical exam under the ADA, alcohol testing is considered a medical inquiry. Thus, alcohol testing should not be conducted until after an employer extends a conditional job offer to a prospective employee. Meanwhile, drug tests should be job-related and consistent with an employer’s business needs.
- Implement a Consistent Policy
An employer should test applicants and/or employees in line with a company drug and alcohol testing policy. This policy must be applied in a uniform, consistent manner to avoid the risk of a discrimination or unfair termination claim. It also should state clearly what conduct it bars to avoid confusion.
As part of the policy, it is also important to ensure that all employees have signed an acknowledgment. The acknowledgment should signify that an applicant or employee has received and reviewed a copy of the policy and consents to its terms.
- Comply with State Laws
Even in states where marijuana use is legal, employers generally are free to maintain a zero-tolerance policy for drug use in the workplace or for use that might affect an employee while at work. However, some states do prohibit employers from terminating employees for engaging in any lawful activity off the employer’s premises during nonworking hours.
There also may be additional state requirements, including regulations pertaining to hair or blood testing. As a result, employers should be sure that their policy complies with applicable laws and regulations.
- Decide Whether to Test for Marijuana
An employer can decide whether to do a standard five-panel test for “street drugs,” such as marijuana, cocaine and PCP, or to also test for prescription drugs and/or alcohol. It generally remains permissible to test applicants for marijuana use even in states where recreational and/or medical marijuana use is legal and to deny employment for a failed test.
However, a growing number of employers in recreational marijuana states (Colorado being a prime example) are opting not to test for marijuana use unless a safety-sensitive position is involved.
Meanwhile, a recent first-of-its-kind Rhode Island ruling may give employers pause. A state court found a company liable for refusing to hire a medical marijuana cardholder because she could not pass a preemployment drug test.
- Give Opportunity to Disclose
An employer should be cautious in dealing with employees taking prescription medication consistent with doctor’s orders. The testing procedure should provide a vehicle for job applicants or employees to disclose current prescribed medications to avoid these concerns.
- Confirm Accuracy
It is crucial that employers do their due diligence to confirm the accuracy of any testing program. This includes verifying a lab’s chain-of-custody procedures and ensuring that proper tampering safeguards are in place.
Summer brings not only warmer days but also some challenging workplace issues such as time off, social events, and summer dress codes. By addressing these issues, HR can make the workplace more productive and efficient, as well as minimize the risk of employer liability. The following are some key issues an employer should consider:
- Summer Dress Codes
A summer dress code is an inexpensive way to improve workplace morale and make employees feel more comfortable when the warm weather hits. It is important to communicate the summer dress code policy to all employees and train supervisors.
The employer should focus on the need to look professional and appropriate at all times, which may vary based upon the type of workplace and the amount of interaction employees have with clients, customers and third parties. In implementing and enforcing any dress code, an employer should avoid policies imposing unequal burdens on men and women or other protected classes. The employer should enforce the policy consistently, following up on violations, properly documenting them, providing warnings and imposing discipline if necessary.
- Protection from the Heat
The job duties and responsibilities of some employees may require them to spend time working outside. In the summer, hot temperatures can cause employees to develop various heat-related issues including sunburn, heat stroke, heat exhaustion, heat cramps and heat rash. An employer should take proper precautions to protect the health and safety of employees, as well as comply with the Occupational Safety and Health Act (OSH Act). An employer that fails to take the appropriate measures to protect employees from the heat may face OSH Act fines and penalties, as well as claims for damages employees suffer while working. It is critical for an employer to educate employees about how to protect themselves from the heat by wearing sunscreen and drinking water. An employer should also provide breaks, set up worksites in the shade and shut down operations during extreme heat waves. Further, an employer should train all supervisors and managers to recognize the signs and symptoms of heat illness and respond quickly if employees are in distress.
- Employer-Sponsored Social Events
While summer workplace parties or outings, such as company picnics, barbecues or baseball games, may encourage workplace camaraderie, boost employee morale and show appreciation, employers must take steps to decrease the risk of legal liability. To avoid wage and hour claims, an employer should make sure attendance is voluntary, hold events outside of working hours and avoid discussing work-related matters. Further, an employer should take the proper precautions with respect to alcohol and minimize the risk of any inappropriate behavior or harassment by carefully tracking alcohol intake and having managers and supervisors monitor any unprofessional workplace behavior. The employer should also make sure employees do not drink and drive and consider providing safe transportation home. Further, to reduce the risk of workers’ compensation claims, an employer should make sure the outing is in a safe environment.
- Time Off and Summer Vacations
Summer is often a time when employees take time off to enjoy vacations and special time with loved ones in the beautiful weather. Therefore, an employer should make sure that its policies regarding vacation or paid time off (PTO) are communicated to all employees and placed in an employee handbook. Further, such policies should be applied in uniform manner to prevent discrimination claims. An employer may require employees to provide advance notification of time off and schedules so that the employer may properly plan with respect to scheduling and coverage.
The US Department of Labor (DOL) has proposed new regulations that would raise the minimum annual salary level for most employees exempt from the overtime requirements of the Fair Labor Standards Act (FLSA) from $23,660 to $35,308.
Employers should begin preparing to comply with the new regulations as soon as possible, as they will likely involve time-consuming and potentially costly changes. The DOL projects that the new regulations will take effect in January 2020.
To prepare for the impact of the new overtime regulations, an employer should consider the following actions:
Identify Employees Who May Need to Be Reclassified
An employer should first determine which of its employees are currently classified as exempt under the executive, administrative, professional or computer employee exemptions (other than computer employees paid on an hourly basis) and currently earn less than the expected minimum salary of $35,308.
Highly compensated employees (HCEs) earning less than $147,414 in total compensation also should be identified.
Develop a New Compensation Plan for Reclassified Employees
The basic options for compensating employees who are currently classified as exempt but are paid less than the new minimum salary will be to:
- Increase their weekly salary to the new minimum or higher to retain their exempt status; or
- Reclassify them as nonexempt and:
- Pay them overtime for any overtime hours worked;
- Reduce or eliminate overtime hours; or
- Reduce the amount of pay allocated to base salary and add pay to account for overtime for hours worked over 40 in the workweek, to hold total weekly pay constant.
An employer should weigh not just the labor cost of each option, but also the potential administrative burdens, morale problems and litigation risks that could result from reclassifying exempt employees as nonexempt.
Consider Whether to Count Incentive Pay Toward the Minimum Salary Level
Under the proposed regulations, an employer will be allowed to count nondiscretionary bonuses, incentives and commissions to satisfy up to 10% of the $35,308.standard minimum salary level (but not the $147,414 minimum salary for highly compensated employees). So, for example, employees who draw an annual salary of about $32,000 and earn a $4,000 bonus could still be overtime-exempt.
When deciding whether to take advantage of this new provision, an employer should:
- Understand the difference between discretionary and nondiscretionary bonuses;
- Ensure that incentive pay is paid on an annual basis or more frequently; and
- Prepare to include incentive pay in the regular rate of pay when calculating overtime;
- Be ready to make catch-up payments to employees whose salary falls short of the minimum level when they fail to earn enough incentive pay.
Review Wage and Hour Policies and Processes
An employer should prepare to review and update its internal policies on:
- Salary basis;
- Meal breaks;
- Rest breaks;
- Timekeeping; and
- Bonus eligibility.
Develop a Communication Plan
It will be essential to develop a communication plan to avoid the kind of confusion and misunderstandings that may lead to litigation.
Most people easily recognize that a physical illness or disability may require a reasonable accommodation under the Americans with Disabilities Act or time off under the Family and Medical Leave Act. But mental disabilities are covered by the ADA and FMLA, too.
With 1 in 4 adults experiencing a mental health impairment in any given year and 1 in 17 persons living with a serious mental health impairment, chances are that an employer at some point will have an employee with mental health concerns. That makes being ADA and FMLA compliant paramount.
Here are six steps to create a good mental health work environment for employees, while at the same time maintaining compliant policies and practices.
- Recognize when FMLA leave or an ADA reasonable accommodation is needed.
In the best situation, an employee will self-identify a need to take FMLA leave or ask for a reasonable accommodation under the ADA. However, they often will not use those terms. If an employee provides the minimum required information to alert the employer that a condition exists that may constitute a serious health condition (FMLA) or disability (ADA), HR should be contacted so it can determine if the employee qualifies for FMLA or ADA coverage.
- Train supervisors to be aware of the signs of mental health disorders.
Some behaviors that normally would be cause for discipline may be a sign of mental impairment, including:
- Decreased performance;
- Increased errors; and
- Sloppy work.
When viewed with other signs of mental impairment – such as a persistent depressed mood, decreased energy and focus, or being more emotional – these behaviors may indicate the need for FMLA leave and/or a reasonable accommodation to enable the employee to perform the essential functions of his or her job.
- But leave the medical diagnoses to the medical professionals.
An employer should not attempt to diagnose the medical issues of its employees. Unless raised by the employee, a discussion should not include anything about mental impairment. If the employee brings up the mental health issues, the employer may instead provide information on an EAP. If a disciplinary situation is involved, employers should consider whether or not an employee’s mental disability is a contributory factor to the behavior or performance, and whether a reasonable accommodation is needed or a current accommodation is sufficient.
- Begin engaging with the employee immediately.
The interactive process should begin immediately once the employer has knowledge of an individual’s disability and that the disability is impacting the employee’s ability to perform his or her job. It is important to document the interactive process.
- Be open and flexible in considering various reasonable accommodations.
A reasonable accommodation need not be expensive or burdensome to be effective. For example, Bob a recently returned vet, became agitated and angry when approached or startled from behind. His workspace was in the middle of the workroom, with other desks all around. The employer relocated Bob’s desk to the back of the workroom so that he could not be startled by someone approaching from behind. Other things employers can consider include removing nonessential job functions, arranging a flexible schedule, or offering FMLA or additional ADA leave. Many tips and suggestions can be found online. Whatever the accommodation, it needs to be effective in helping the employee perform the essential functions of his or her job.
- Maintain confidentiality.
An employer should exercise extreme caution with employees’ confidential medical information, especially mental health information. Medical records must be kept separate from the employees’ personnel files.
Only HR should be given access to these records and only when there is a need to know. An employee is free to share information about his or her condition with coworkers, but it is safest for an employer not tell anything to the employee’s coworkers and supervisors.
To minimize the risks associated with managing the performance of employees suffering from mental disability, employers should:
- Provide employees with information regarding community resources and supports, as well as resources available through their employment (employee assistance programs, private insurance benefits, etc.).
- Intervene carefully and address performance issues as soon as possible.
- Consider whether there is a nexus between the employee’s behavior or poor performance and the alleged mental disability.
- Take an active role in the search for suitable accommodation and all keep records of any alternatives considered or proposed.
Employees with body odor can cause a disruption in the workplace; other employees may feel uncomfortable and, in extreme cases, be unable to perform their jobs. Employees may also begin to talk about the problem in the workplace, which disrupts work even more.
So what should you do?
The bad news is, there’s no guaranteed way to bring up personal odors without causing embarrassment. The good news is, most people would rather be a little embarrassed in private than be avoided by clients and coworkers.
Given the personal nature of the problem, managers should handle the matter with sensitivity. Body odor may be caused by a medical condition, poor hygiene or a specific diet, to name a few options. If the issue is not addressed appropriately, it may run afoul of the Americans with Disabilities Act or lead to claims of discrimination under Title VII of the Civil Rights Act.
Depending on the strength of relationship with the offending employee, HR or the manager should meet with the employee to bring the matter to the employee’s attention. Don’t jump to conclusions, but don’t avoid the situation either.
Once you’ve decided to have the conversation, sending the message in the most empathetic way is the main concern.
A good way to begin is to say, “What I have to say is difficult, but if it was me I would like know.”
Using a term like “unusual odor” is more appropriate than “smell” or “stink.”
Gently pointing out the strong odor and asking for a response from the employee is critical. If appropriate, HR or the manager should reference the company’s dress and grooming policy and the negative effect on the employee’s contributions can be discussed. The employee should be allowed an opportunity to discuss the matter and to provide possible solutions. In the event the employee states that he or she has a medical condition, HR or the manager should reassure the employee and discuss reasonable accommodations.
Issues such as this one may cause employees to be distracted and disgruntled. Because is it inappropriate for employees to handle these situations between themselves, managers must deal with this situation as soon as possible.
Here are some do’s and don’ts:
- Do make sure you have a dress code policy that includes personal hygiene.
- Don’t jump to conclusions, investigate.
- Do address the matters quickly and discreetly
- Do be sensitive to cultural norms and medical conditions.
Remember it’s normal to worry about hurting or offending employees by having these discussions. But if you handle it with discretion and diplomacy, you are actually doing them and their colleagues a kindness. More to the point, you’re doing your job as a manager.
I’m a calendar junky. There, I said it. I believed that in order to feel accomplished, and important, I needed to fill my calendar, every day, every moment. I filled it with meetings, calls, appointments, lunch dates, product reviews, sales pitches, networking meetings, board meetings.
I was busy, but I was not productive. All the things I was involved in served only to take up valuable time, and then I would find myself working late into the evening, and yes, on the weekends, doing actual work I was being paid to do. I had a hard time saying no.
As an HR Department of One, our job is never just “HR.” We wear many hats, payroll, event planning, accounting, executive assistant, travel planner, safety, facilities, heck sometimes we even do maintenance! Not to mention the countless interruptions we get throughout the day. You know the knock on the door followed by “Got a minute?” turns into 30 minutes, and another task to add to your calendar.
So, how do we transition from being busy, to being productive?
Eat That Frog! – You may know Brian Tracy’s famous “eat-a-frog”-technique from his classic time-management book, Eat That Frog: 21 Great Ways to Stop Procrastinating and Get More Done in Less Time. Right when you start your day, choose the most unwanted task, and just get it done.
Learn to say “no.” – Busy people say yes to everything; productive people say yes carefully. Be honest with yourself about deadlines, the time commitment required, and how your skill set fits in to determine what you should devote your time to. You’ll learn to say yes strategically rather than saying yes to everything.
Think Smaller – Set smaller, measurable goals. Align your to-do list with your calendar. By blocking out time on your calendar to tackle to-dos, you won’t be derailed by meetings and lingering action items.
Focus on one project at a time. Multitasking is interrupted productivity. Instead of doing multiple tasks at once, you are switch-tasking and this start-and-stop process prevents you from hitting a state of flow and engaging in deep work.
Close the Door – This is a hard one. Learning to close the door is like learning to say no. By closing the door, you let everyone know that you are not to be disturbed unless it is an emergency, sometimes adding a sign to the door helps. By shutting out all distractions, you can focus and efficiently use your time without being interrupted.
At the end of each day, ask yourself, “did my work today bring me closer to my goals, or did I just have a busy day? Honest introspection should become a daily practice as you find out which productivity methods work best for you. Take a few moments at the end of each day to meditate on what went well and what didn’t. takes notes and adjust!
The employment at-will doctrine, accepted by nearly all 50 states, provides that either party may terminate the employment relationship at any time, for any reason. Despite the flexibility afforded by employment at-will, agencies, judges and juries in federal and state courts all expect employers to behave rationally and with a good explanation for their actions.
Note: the employment at-will doctrine generally does not apply in the unionized workplace, where just cause for discipline and discharge is typically incorporated into a collective bargaining agreement.
So what are the steps for terminating an at will employee for misconduct?
Step 1: Prepare for the First Instance of Misconduct
Employers must plan for the possibility that, at least occasionally, employees will engage in behavior that warrants disciplinary action up to and including termination.
It is essential that employees know and understand the rules. Thus, employers should make a written disciplinary action policy available to their employees and they should set forth the expectations for workplace behavior. An employer should attempt to have employees sign and acknowledge the terms of the disciplinary action policy, if possible.
Step 2: Investigate Accusations of Employee Misconduct
When an employer learns that an employee may have engaged in a work rule violation, the employer should promptly gather facts about what happened. This can be as simple as asking a few questions or it may be more complicated and require a more substantial investigation.
It is essential that the investigation into the alleged work rule violation be fair and unbiased. So, for example, the supervisor accusing the employee of the violation should not also be the individual who investigates the incident and/or questions potential witnesses. At the very least, the investigation should include an interview with the employee who is alleged to have violated the disciplinary action policy and any witnesses to the alleged violation.
Based on the results of the investigation, the employer should decide whether the employee should be disciplined in accordance with the disciplinary action policy. The employer should strive to consider objective facts as opposed to opinions or subjective personality differences.
Step 3: Ensure That Planned Discipline Will Not Be Discriminatory
The employer should ensure that any discipline, including termination, is administered in a non-discriminatory manner. You should determine whether other employees have been disciplined for engaging in similar behavior. Typically, discipline should be the same for all employees who engage in similar misconduct in similar circumstances.
Step 4: Discipline an Employee for Severe or Repeated Misconduct
Once the investigation has been conducted, a violation established, and appropriate, non-discriminatory discipline determined, the discipline should be promptly administered. In fact, the closer in time the discipline occurs to the incident of misconduct, the better an employer’s defense if the employee starts a legal dispute. In other words, disciplining someone for an infraction that occurred a month ago is problematic.
If a violation is found and supported by objective evidence, best practice is to discipline at-will employees gradually, with increasing discipline for increasing or repeated violations of workplace rules. For example, verbal warning, followed by written warnings. The employer should also document the employee’s personnel file, including details regarding the accusation, the information obtained during the investigation and the discipline the employer or HR professional ultimately decided to issue.
If a violation is not found or is unsupported by objective evidence, the employer should speak with the employee and ensure he or she is aware of workplace rules. In some cases, a “re-acknowledgement” of the disciplinary action policy or the employee handbook might be worthwhile, particularly where the employee claims that he or she was unaware that the behavior in question is considered a workplace violation.
Step 5: Terminate an At-Will Employee for Misconduct
When the progressive disciplinary system has failed, when the employee simply has not responded to repeated warnings or increasing severity of discipline, an employer may decide that terminating the employee is the best course of action.
You should always strive to notify employees of termination in person. When communicating a decision to terminate an employee in person, there should always be two members of management present. Typically, one management employee will explain that the decision has been made to terminate the employee, with a brief statement of the reason for that decision. It is important not to explain the decision in too much detail, here. Any statements by management personnel regarding the rationale for termination will likely resurface if the employee brings a legal claim.
The other management employee should simply observe the exchange. It is crucial that the observer be impartial, unbiased and if possible, removed from the employee being terminated by several degrees of hierarchy. The observer may be called to testify as a witness in a future legal dispute, and in that case, the observer’s credibility will be significant in defending the claim.
The employee should be afforded the opportunity to express his or her feelings, within the boundaries of common decency. Management employees, on the other hand, should resist getting into a debate over the decision, particularly where they are confident in the decision to terminate.
If new or additional information is provided by the employee during this meeting that raises questions about the termination decision, the employer can put the decision on hold while the new information is investigated. In that case, a temporary suspension of the employee may be prudent, provided that no promises of continued employment are made to the employee in question, either verbally or in writing.
If the employee has been suspended pending investigation, it may be appropriate to communicate the termination decision by letter. In that case, the employer should send the letter by certified mail, return receipt requested, to ensure that the employee has received notification on a timely basis.
Involve HR! If an employee is in a protected class, has a known medical condition or disability, has taken job protected medical leave, or if there is suspicion of any other legal issue (e.g. harassment, retaliation), be sure to consult with HR or an employment attorney before terminating. Have an HR question you’d like answered? Leave your topic idea in the comments section below.
Acting on instinct can lead employers in the wrong direction when it comes to arrested employees. Employers need to consult legal counsel and consider all available options before making any decision on the worker’s job status. Also, it’s important that employers be aware of their employees’ rights and act in accordance with those rights. Making the wrong decision may result in a costly lawsuit.
The following criteria should be considered before suspending or discharging an employee based merely upon an arrest:
The policy or rule should not be “automatic” and any decision to take adverse action should be made on a case-by-case basis. Blanket suspension or discharge rules may be found unnecessary and the correlation between the employer’s business and the arrest may be too remote to justify the consequences of automatic suspension or discharge.
Confirm the accuracy of the report of arrest before taking disciplinary action. Remember – there is a big difference between a conviction for a crime versus an arrest/charge for a crime
An arrest is nothing more than an accusation – nothing has been proven, so an employer should always be leery about firing an employee for an arrest.
The same is true of an indictment or other formal charge.
Employers must be aware that some states have laws that specifically say that employers may not suspend, discharge or take other disciplinary action based on the fact that the employee was merely arrested.
Suspension or termination decisions should be made with the duties of the employee in mind. The company must determine if the offense will have an impact on the job the employee performs. To illustrate some examples, an employee that works in the office in an accounting role who is arrested for a DUI may not need to be terminated, as the offense is in no way related to the duties of the job. However, a bus driver who is arrested on the same offense may warrant termination, as the safety of the passengers needs to be taken into consideration. Each situation should be evaluated on a case-by-case basis taking into account the facts and circumstances of the particular employee and the reason for the arrest.
While terminating an employee for off-duty conduct may generally fit within the at-will doctrine, this is a cautionary reminder that an employer should consider whether there are any statutory or other exceptions under the law that may weigh against a termination decision.
Consider Other Bases for Action
The circumstances surrounding an employee’s arrest or conviction may sometimes provide a basis for taking disciplinary action even if the conduct was unrelated to work, not egregious and had no relationship to the employee’s job. For example, an assembly line worker who is arrested for non-payment of alimony may not be able to post bond and so may be gone from work for several days with an unexcused absence. In that case, the employer may take disciplinary action on the basis of the excused absences. However, the employer must ensure that all employees with unexcused absences are treated uniformly; the fact that incarceration was the reason for the employee’s absence must not be a factor in the discipline.
Document Everything: As with all personnel matters, documentation is critical. The employee file should contain all relevant notes, documents, evidence, interviews and decision-making processes pertaining to the decision to impose discipline on the employee for the alleged criminal activity.
Even the most experienced HR professionals can be tripped up by the rules, so it’s advisable to consult with an experienced employment law attorney to ensure you make the right decision.
Brining involves soaking a turkey in a very salty solution for a certain length of time, long enough for the salt to infiltrate the turkey and actually alter the molecular structure of the meat. It doesn’t turn it into a salty mess, either. It just results in a juicy, fantastic turkey.
Making a brine is actually very easy to do. You basically need a bunch of salt and whatever other ingredients you want to throw in. I like to balance the saltiness with the sweetness of apple cider and brown sugar, but you can use whatever you’d like.
Note: Making gravy from the drippings of a brined turkey can result in a really salty gravy if you’re not careful.
By the way, you can thaw and brine a turkey at the same time!
• 3 cups Apple Juice Or Apple Cider
• 2 gallons Cold Water
• 4 Tablespoons Fresh Rosemary Leaves
• 5 cloves Garlic, Minced
• 1-1/2 cup Kosher Salt
• 2 cups Brown Sugar
• 3 Tablespoons Peppercorns
• 5 whole Bay Leaves
• Peel Of Three Large Oranges
Combine all ingredients in a large pot. Stir until salt and sugar dissolve.
Bring to a boil, then turn off heat and cover.
Allow to cool completely, then pour into a large brining bag or pot. Place uncooked turkey in brine solution, then refrigerate for 16 to 24 hours.
When ready to roast turkey, remove turkey from brine. Submerge turkey in a pot or sink of fresh, cold water. Allow to sit in clean water for 15 minutes to remove excess salt from the outside.
Discard brine. Remove turkey from clean water, pat dry, and cook according to your normal roasting method.
Your first responsibility for paperwork and regulations for new employees comes immediately after hire. Before the employee starts work and receives his or her first paycheck, there are some forms you are required to have the employee complete. These forms must be completed by every employee, according to both federal and state laws.
Federal, state, and local agencies can also audit your employee records for a variety of reasons, so keeping records is important.
Form W-4 for Federal Income Tax Withholding
All new hires must complete Form W-4 before receiving their first paycheck. This form includes information on marital status, number of dependents, and designated additional withholding amounts. It is used to calculate withholding for federal income taxes. You don’t have to keep copies of all W-4 forms, just the most recent one.
Employers should not give employees advice on how to complete this form, but you can direct them to an IRS article that helps them complete this form.
Be sure to use the most recent version of the W-4 form.
Employees may change their W-4 form as often as they like. For example, an employee may receive a bonus and want to change withholding. It is your responsibility as the employer to keep track of the latest change and to make sure employee paychecks reflect the wishes of the employee for withholding.
As an employer, you must document the eligibility of new employees to work in the U.S. The document you must use is Form I-9, Employment Eligibility Verification, which must be completed by each new hire. The new employee must provide documentation of (a) identity and (b) work eligibility.
Job Application Form
The new hire process often starts with this essential form being filled out. Applications are often desirable even if you receive a resume because they are standardized and can be used to gather the same information from each applicant.
On the application form the applicant attests that the information on the application is true and correct, while other statements allow the employer to conduct reference checks and background checks.
State Withholding and Registration
Employers must register new employees with their state’s new hire notification system; this registration allows the state to collect child support payments from these employees.
Each state that collects income taxes has requirements for employers to report and pay those taxes. Contact your state department of revenue (or equivalent) for information on how to register as an employer in the state. This state agency will also give you information on withholding forms and requirements for reporting and paying withheld amounts.
For states that have an income tax, you will need to deduct these taxes from employee paychecks and send the withheld taxes to the appropriate state agency.
Create an employee handbook.
Although not required, it is an excellent idea to have a handbook describing your business’s employee policies and making it clear that employment is at will unless an employee has signed a written employment contract. A handbook may include work process descriptions and benefits in addition to policies and procedures.) All new employees should receive a copy of this handbook and should sign that they have read and understand it.
Set up personnel files.
For each employee you hire, create a file in which to keep job-related documents, such as job applications, employment offers, IRS Form W-4, performance evaluations, and sign-up forms for employee benefits. Medical records should be kept in a separate, confidential file, in a locked cabinet. And you should store I-9 Forms, which document an employee’s immigration status, in a separate file as well.
The rules on what kinds of travel time are (and are not) compensable for non-exempt employees are complex. As opposed to exempt employees—who generally receive a salary intended to compensate them for all working time, including time spent in business-related travel—non-exempt employees are often only paid for the particular hours that the law deems compensable. Failure to pay a non-exempt employee for compensable travel time can lead to both straight-time and overtime pay claims.
Here are 5 Basic Rules for Calculating Correct Employee Pay for Travel Time
Rule 1: The time employees spend commuting to and from their regular place of work each day is NOT work time, so employers do not have to pay employees for this time. What’s important about this, is that it doesn’t matter if the site of the first place of employment changes from day to day, and the distance doesn’t matter either, except in very, very special circumstances.
Rule 2: Work time DOES include time spent traveling to another location for a special assignment, substantial travel for an emergency outside the normal working hours, and time spent traveling during regular work hours as part of the employee’s principal job duties.
Rule 3: If an employee reports to a central location to pick up equipment before proceeding to his or her assigned worksite, the time spent traveling to the central location is NOT work time. In this case, this travel to the central location falls under rule 1 – commute time to the first place of employment for that day. However, in this type of situation, then the time spent traveling from the central location to the assigned worksite IS work time.
Rule 4: Overnight travel or travel away from home IS work time (thus requiring employers to pay for travel time) when it cuts across the employee’s normal workday and/or requires the employee to work on weekends or days when he or she would not otherwise be required to work.
For example, if the employee’s hours are 9am to 5pm, and they are a non-exempt employee, and you have them take a 2pm flight, then the travel time from their home to the airport, all the time waiting at the airport (delays, weather, what-have-you), the flight time, and the travel time to the hotel (or wherever they’re going) all becomes compensable time. [If it’s the] same scenario, [but] you make the employee take a 7pm flight (2 hours after the end of their normal shift, 9-5), then none of that time that I just explained is compensable time. That said, remember that state laws may differ from federal law and your state may have stricter employer obligations.
If an employee normally works Monday through Friday from 9:00 a.m. to 5:00 p.m. and the employee is traveling on Saturday, the employer would be required to count as hours worked the time spent traveling by the employee between 9:00 a.m. and 5:00 p.m. on that Saturday. If the employee’s travel spans that entire normal workday time period, the employer would be required to include all that time, minus time usually given for lunch or breaks, as hours worked. As noted, if the employee actually performs work on a non-workday while he or she is traveling, the employer would need to count that time as hours worked regardless of what time the work is performed.
Rule 5: Regular meal periods and time spent sleeping or in other leisure activities while traveling IS NOT work time, and the employer does not have to pay the employee for this time.
The federal rules regarding travel time are confusing, and the outcome depends on when the travel occurs, the purpose of the travel, and whether employees perform any work-related activities while in transit. Even the most experienced HR professionals can be tripped up by the rules, so it’s advisable to consult with an experienced employment law attorney to ensure your travel time policy is compliant with federal and state law.
For example, some employers might try to find out about the person’s work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information, it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.
If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:
Tell the applicant or employee you might use the information for decisions about his or her employment.
This notice must be in writing and in a stand-alone format. The notice can’t be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn’t confuse or detract from the notice.
Get the applicant’s or employee’s written permission to do the background check.
This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person’s employment, make sure you say so clearly and conspicuously.
Use background check services that are FCRA compliant.
The Fair Credit Reporting Act (FCRA) is fairly clear on what you can and cannot do as part of a background check with regards to credit information. Nearly all background checks are governed by the Fair Credit Reporting Act (FCRA), but you should know that there are an array of other laws that affect them, depending on state and region.
Get legal advice on how local and state laws govern your use of background checks.
Several states laws limit employers use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. Get legal advice on basic criminal history laws for each state.
Give candidates a chance to clear up mistakes or misunderstandings with background checks.
Information obtained through background checks can sometimes be slightly incorrect and even outright wrong. Giving candidates a chance to rectify or explain incorrect information can help you save a great candidate that could have been excluded.
Use background checks consistently not on a candidate-by-candidate basis.
Apply the same background check process to every candidate you interview for the role. Applying it selectively to only candidates form a specific background or experience level can cause unintended legal consequences if it is shown to be a proxy for illegal discrimination. Outside of this, waving some candidates through based on gut feeling defeats the purpose of doing a background check to protect your company.
Here are some of the most common payroll mistakes to avoid:
- Misclassification: Employee vs. Independent Contractor
Perhaps the most common audit issue today is misclassifying workers. There’s incentive to treat workers as independent contractors rather than employees because payroll taxes and employee benefit costs are high.
You don’t have the freedom to select the label for the worker; classification depends on whether you have sufficient control over the worker. This essentially means having the right to say when, where, and how the work gets done.
Find information about worker classification from the IRS. When in doubt, consult your tax advisor.
- “All our employees are exempt, we pay them a salary”.
Paying someone a weekly salary does not make that employee exempt.
Remember-job titles alone do not determine the exempt or non-exempt status of any employee. Exemptions are determined for each specific employment situation based on the specific job duties performed and compensation received.
- Allowing employees to work off the clock.
The U.S. Department of Labor and the courts do not recognize the concept of voluntary overtime without proper overtime pay. Agreements by employees to give up their rights to minimum wage and overtime pay are void and unenforceable.
Employees generally may not volunteer to perform work without the employer having to count the time as hours worked. Examples include:
Rework: When an employee must correct mistakes in his or her work, the time must be treated as hours worked, even when the employee voluntarily does the rework.
Waiting for Work: Time, which an employee is required to be at work or allowed to work for his or her employer, is hours worked. Is the employee “engaged to wait” or “waiting to be engaged?”
Place of Work: Hours worked include all the time during which an employee is required or allowed to perform work for an employer, regardless of where the work is done, whether on the employer’s site, at home or at some other location.
Working during Lunch: Lunch breaks aren’t breaks if your employees work during the break.
- Deducting money from pay without written authorization.
Other than court-ordered garnishments and deductions that are either required or specifically authorized under laws or regulations, all wage deductions should be authorized by the employee
- Loaning money, advancing wages, or paying wages without maintaining clear, written documentation of the transaction.
Banks do not loan or advance money without a signed, written agreement for repayment and neither should an employer. If loans or wage advances are to be repaid via wage deductions, obtain written authorization for the deductions, specifying amounts and intervals, and do not forget to provide for deduction of any remaining balance at the time of a work separation. Never pay wages in cash without getting a signed, written receipt from the employee.
Don’t delay. If you have good reason to believe an employee is drinking before coming to work, act immediately. This situation could have a negative impact on morale, is a potential safety issue and does nothing to promote an engaging work environment.
Watch for observable behaviors that are consistent with cognitive impairment. These include smell of alcohol, bloodshot eyes, slurred speech, unsteadiness on their feet, making an unusual number of mistakes or an inability to focus on their job duties.
Share your observations with the employee. There is nothing wrong with asking the employee if he or she has been drinking, provided you have credible reason to believe so. You have safety on your side, more than likely company policy, and applicable state laws. These conversations are best conducted when at least two company representatives are present, along with the employee.
Examine the policy. It is important to have sufficient detail in the policy to cover most situations, and if it needs to be adjusted to be more comprehensive, then the company should move to make that happen. Taking a look at the company policy regarding drinking, you will know the exact parameters. If you don’t have a policy, it’s a good time to make one!
Never make a medical diagnosis. Managers should never directly accuse an employee of being drunk or high. Only doctors can make a diagnosis.
Consider safety. Employee safety is paramount. An employee who is drinking prior to work puts people at risk. This is especially true in organizations that use heavy equipment but could certainly apply in an office environment as well.
Document the conversation. Whether the employee is returned to duty or not, the manager documents the conversation as a verbal warning.
Seek discipline. So your employee is suspected of drinking. The employee says that he or she was not drinking and will not admit to doing so. If you still suspect drinking occurred, then have the person take a blood-alcohol test. It is important that the manager, supervisor, or HR escort the employee. The results of the tests will determine whether you need to take disciplinary action. Employers cannot force workers to take a drug test against their will. However, an employee who refuses to take a drug test can be fired for that reason, as long as the employer had a solid basis for asking the employee to submit to the drug test in the first place.
Promote a healthy work environment. People drink for a variety of reasons that could be lessened by an engaging, healthy work environment. Some companies use vendors that provide programs focused on healthy living. These could include assistance with alcohol reduction, tobacco cessation, weight loss and physical fitness.
These situations are never easy, and the solution may vary case to case. Be respectful, be thorough, and document everything!
When it comes to hiring employees, cultural fit has risen in importance, ranking among the top factors for whether to hire a job candidate. Unfortunately, for small business owners, trying to determine whether a candidate is a “good fit” can lead to discrimination pitfalls, especially when you use small talk as a gauge.
Sometimes small talk can lead to inadvertently asking illegal job interview questions, or being provided with information from job candidates that could be used to discriminate against them.
You should avoid questions that can appear to be discriminatory — ones that relate to where a candidate lives, their age, their arrest record, national origin, credit history, family status, financial status, marital status, pregnancy, race or color, religion, gender, or sexual orientation.
Here are some good rules of thumb to avoid the appearance of discrimination:
- Stay away from anything that isn’t related directly to the job.
- Resist the temptation to delve into personal conversation.
- Be direct about what traits and skills they’d need for the role and ask the candidate to speak to those things.
5 Illegal Interview Questions You DON’T Want to Ask
While some illegal questions like “How old are you?” are more obvious, others are less so. Some questions seem like “cultural fit” questions, and others simply pop up when you let the interview meander off into small talk. Remember the rules of thumb from above, and avoid letting your interview conversation head toward questions like these:
1. “What part of town do you live in?” This seems like a harmless question — one that would be asked out of curiosity — but it could be interpreted as an attempt to figure out if a candidate lives in a part of town where mostly minorities live. It’s best to avoid it. If you want to know whether they live nearby because punctuality is important to you and traffic is heavy where you are, then ask candidates if there’s any reason they might not arrive to work on time each day.
2. “What year did you graduate from USC?” While you may ask a question like this simply because you found something in common with your candidate, it’s no longer innocent when you go in a direction that could help you figure out their age. The Age Discrimination in Employment Act (ADEA) prohibits any interview questions that could indicate age discrimination.
3. “Being a start-up, we tend to have younger managers. Would that be a problem?” This is another indicator of potential age discrimination. While it may seem like a valid question about whether you and the candidate will work well together, by asking this question in this way, you imply that you’ve noticed the applicant’s age and see it as a potential reason not to hire them. A better way to ask this is by leaving out references to age altogether. You could say, “Would you be comfortable taking direction from someone who has less on-paper business experience than you do?”
4. “I hear an accent. Where are you from?” You may just be curious, but when it comes to national origin discrimination, this question is a red flag. Asking it could hint that you might discriminate against a potential employee due to their accent or the fact that they may be from a different country. If language fluency is important in the role, ask candidates direct questions about which languages they are fluent in. You can also formally evaluate their communication skills as part of your interview process. Just don’t ask them if they’re native speakers or whether English is their first language.
5. “How many kids do you have?” Even if you’ve gone in to the small talk zone with a candidate who has already mentioned having kids, don’t ask this. In fact, even if you’ve already related to each other about having kids, try to avoid asking any further questions around this topic. Asking candidates about their children or if they plan to have children can signal discriminatory hiring practices.
Here are 4 questions you should ask to help determine culture fit:
- How did the culture at your last company allow you to thrive or hold you back? It is hard to phrase questions about the candidate’s previous employers in a way that can give you any insight into how the company operated culturally. This question allows the interviewer to learn about the previous company through the candidate’s perspective of the culture.
- Describe the best manager you ever had, what were there characteristics? This will answer questions like What was the boss’ management style, and why did the candidate thrive? How does that management style relate to your management style?
- What has been your most difficult or challenging career relationship, and what were the results of it? Conflict exists in every work environment, so it is far better to discuss how the candidate will problem solve through their work relationships than leave it to chance.
- How do you like to receive feedback, and how often? Does the candidate see feedback as an annual formality or a constant process of mentorship and development with their best interests at heart? How does that mesh with how things happen at your company? Does the candidate grin and bear it, argue or listen carefully and make changes when feedback is offered?
Obviously you can’t conduct a full interview with only these four questions. You’ll need to ask many other questions to determine whether the candidate has the skills, experience, education and certifications required to capably handle the role you are filling.
Employers looking to save as much money as possible sometimes try to get around legal and financial obligations to workers who should be classified as employees by classifying them as independent contractors, but even an honest mistake can have serious consequences for business owners. Employment status affects employment benefits, tax implications, liability, and other issues. Any employer looking to work with independent contractors should know some of the key differences between the two classifications before deciding which type of worker to hire.
Let’s talk about a few of those differences…
How long will the independent contractor be working for you?
If the staffing need relates to a specific project with no likelihood of continued employment after project’s completion, using an independent contractor would avoid the problem of having to lay off an employee when the project is done.
Do they only work for you?
If the company needs the worker’s full-time efforts over an extended or indefinite period, the situation would likely call for a traditional employee. Long-term independent contractors who have only one client are viewed as suspicious as they are similar to employees. If the organization needs the worker only part time, does not object to the individual having other clients or will be satisfied as long as the worker meets set deadlines, then the organization can feel confident in engaging an independent contractor.
If the employer rigidly prescribes the manner in which the work is performed, that weighs toward employee status. Hiring an employee would be the safer course of action. If the organization is concerned only about the final product and does not need to dictate how the worker gets from point A to point Z, an independent contractor may be the preferred approach.
Are you providing an office, supplies, or equipment?
True independent contractors do not need organizations to provide them with an office, equipment or other basic necessities of doing business.
Are any of your other employees doing the same job?
Employees and independent contractors doing the same job is a big red flag. If challenged, the employer will be expected to offer a clear and convincing rationale that does not involve avoiding legal obligations.
What Are the Legal Ramifications of Misclassification?
Independent contractor arrangements have drawn increasing scrutiny and significance with the large number of workplace laws covering employees and the growth of the contingent workforce. Misclassification of an individual as an independent contractor can give rise to a variety of liabilities such as
Employers are required to withhold income taxes on the basis of information employees provide on IRS Form W-4. If an employer fails to withhold income taxes on behalf of a worker improperly classified as an independent contractor, and the individual has failed to pay the taxes, the employer may be liable for federal or state taxes that were required to be withheld but were not.
A misclassified worker can result in the supposed employer being held liable for on-the-job injuries outside the protections of the workers’ compensation system, and for penalties as well.
A worker may file a claim for unemployment compensation and be granted benefits if the unemployment agency believes that the worker was misclassified as an independent contractor. If the organization misclassified the worker, it may be liable for penalties and interest in addition to unpaid unemployment insurance premiums.
Wage and hour liability
The widespread use of independent contractors invites the scrutiny of attorneys who may be eager to bring a class or collective action suit for unpaid overtime or minimum wage violations under the FLSA or state wage and hour laws.
Questions to Ask
- Are the independent contractors paid the same way as your employees and at the same time? Payment in the same manner (for example, if the checks look identical and are paid out on the same day as your regular employees) …is not good practice!
- Do the independent contractors go through progressive discipline if there are performance problems, or are their contracts terminated? Progressive discipline shouldn’t be used for independent contractors.
- Do the independent contractors have company credit cards or expense accounts? If they do, they are employees, not independent contractors.
- Are the independent contractors reporting to company supervisors? This is another potential trouble spot, as reporting to supervisors would undermine contractors’ control over their own work. The more control a company exercises over individuals’ work, the less likely they are independent contractors.
So How do you Classify Properly?
No legal test applies in every situation when deciding to classify a worker as an independent contractor. For example, the IRS and DOL use different, although similar, frameworks.
To minimize legal risk, employers are advised to use federal government, state government, and agency tests as guidelines to create a questionnaire or checklist when determining worker classification.
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