HR Tips

  1. Lack of proper documentation is the number one reason companies lose the Department of Labor claims. The employer is the “keeper of the record” meaning, if you do not have proper records, they will side with the employee.
  2. Many companies misclassify at least some employees as salaried (exempt). 80% of all companies are out of compliance with the California FLSA. To be classified as exempt, employees must meet all tests as specified in the FLSA. Just because a company pays an employee a “salary”, as opposed to an hourly wage, it does not mean the employee is exempt from FLSA. Salaried employees also must meet all of the primary duty tests to be exempt. Misclassified employees expose the employer to many violations of the FLSA.
  3. Every company must have written policies on sexual harassment, equal opportunity, nature of employment, types of employees, overtime, and hours of work.
  4. An employment application must be filled out in full for every employee, and contain an “at-will employment” clause. Any false information provided by the employee on the application is a reason for immediate termination of employment. The application should also state the applicant gives the employer the right to verify the information. The employee must fill out the form completely.
  5. Every company must have an employee handbook available for any employee to review.
  6. Training should be provided for supervisors and managers, especially regarding rules on breaks and meal periods.
  7. Automatic meal time deductions are very risky and should not be done. You want employees to punch in and out so there is always a record of mealtimes.
  8. Avoid absolutes: No personal computers, no cell phone use, 90-day reviews on the 90th day, exacting grievance procedures. (Employee Handbook policies must reflect the actual practices, and allow the employer some discretion.)
  9. BlackBerry or Laptop pitfalls. The BlackBerry is a great way to work from home, but the innovation also represents a lurking wage and hour trap. If Non-Exempt employees use a BlackBerry, iPhone or other PDA to check or send e-mails or make business-related phone calls outside of “normal” working hours, then that time is compensable work time.
  10. Contractor questions. Employers often misclassify workers as “independent contractors” instead of as employees, and “doing what the rest of the industry does” can lead to claims for back wages, as well as unwanted inquiries from state and federal agencies. In fact, the U.S. Department of Labor intends to focus its upcoming compliance efforts on investigating employers’ misclassification of employees as independent contractors. The government has earmarked millions of dollars for this campaign, known as the “Misclassification Initiative.” Minimize exposure to an adverse investigation by reviewing the status of all “independent contractors.”
  11. “Voluntary overtime”. Employers must pay employees for all hours that they are “suffered or permitted” to work, even if the employee is working “off the clock.” The truth is, an employee cannot “volunteer” or be required to work unpaid overtime. Employers must pay non-exempt employees for all the time they spend working, including overtime hours at 1 1/2 times the regular rate of pay.
  12. Bonus blunders. Non-exempt employees must be paid overtime for hours worked in excess of 40 in a workweek, based on what is called the “regular rate” of pay, but many employers fail to calculate the proper regular rate for overtime payments. The regular rate of pay must include the normal hourly rate plus certain other payments such as non-discretionary bonuses. For example, if an employer pays non-exempt employees a bonus each quarter based on meeting certain production goals, the employer must include the amount of the bonus in – and recalculate – the employees’ overtime payments over the course of the quarter.