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Question of the Week: Is there anything special we should know before terminating a remote employee?
Answered by the HR Experts
Terminations involving remote employees function much the same as those in a physical worksite, but there are some things to keep in mind:
- If the employee works in a different state, you’ll need to follow that state’s laws regarding termination procedures, paperwork, and final paychecks. Look these up on the platform ahead of time. You don’t want to miss any deadlines.
- Coordinate with IT so they are prepared to remotely revoke the employee’s access to company systems immediately upon termination.
- Have a clear process in place for the employee to return any company-owned computers, monitors, phone systems, etc. and plan to pay for shipping. Go over the process at the termination meeting.
- Don’t make deductions from the final paycheck because the employee hasn’t returned company property or has returned things damaged unless you’re sure it’s legal in the state where they work and that you’ve complied with any related requirements.
- As with most terminations, be sure to have documentation of behavior and performance issues, conversations you had, disciplinary actions you took, and warnings to the employee about the consequences if they failed to improve. This documentation may be helpful if the termination is ever challenged.
PAST QUESTIONS:
What is age discrimination?
Answered by the HR Experts
Age discrimination (sometimes called ageism) means treating people less favorably because of their age. In the workplace, this commonly happens when an employer favors a younger worker over an older one. In some cases, age discrimination is unlawful.
If your organization has 20 or more employees (for 20 or more weeks in the current or previous year), then it is covered by the federal Age Discrimination in Employment Act (ADEA). Enacted in 1967, this law forbids age discrimination against people who are 40 or older. The ADEA requires covered employers to avoid and prevent age discrimination in all aspects of employment. This includes, but is not limited to, hiring, work assignments, wages, bonuses, promotions, discipline, and termination. Many states have age discrimination laws that kick in at a lower employee count and some even protect younger workers.
You don’t have to intend to discriminate to violate the ADEA. You might even have good intentions. Let’s say that you recently hired an employee in their late 60s and their start date is tomorrow, but you’ve just been informed about COVID exposure in your workplace. Fearing that the new employee may be more at risk because of their age, you push back their start date. Doing this would be a clear case of age discrimination (the proper course of action would be to reach out to the new employee to see what they’d like to do given the situation).
The best way to avoid discrimination is to base employment decisions only on factors that are job related and irrespective of age.
An employee in a job that regularly requires lifting 50 pounds now says they can only regularly lift 25 because of an off-the-job injury. Can we terminate?
Answered by the HR Experts
Possibly, but proceed with caution. The Americans with Disabilities Act (ADA) requires employers that have 15 or more employees to provide accommodations to employees to enable them to perform the essential functions of their job unless doing so would create an undue hardship or create a direct threat.
First, make sure that regularly lifting 50 pounds is actually an essential job function. Generally, an essential function of a job is a fundamental duty of the position. If the job can be done without regularly having to lift 50 pounds, then regularly lifting that weight isn’t considered an essential function, and you can’t terminate the employee because they are unable lift that amount.
Second, and if regularly lifting 50 pounds is an essential function, you are required to engage in the interactive process with the employee to determine if a reasonable accommodation would enable them to perform that task. Note that providing an accommodation doesn’t necessarily mean that they have to be able to personally lift 50 pounds. It could mean enabling them to move the 50 pounds from point A to point B without personally lifting it—with the use of a device of some kind, for example. Other potential accommodations include reassignment to an open position that the employee’s qualified for or, if the lifting limit is temporary, a leave of absence.
If there’s no accommodation that would enable them to perform the essential function without causing a direct threat, or if the only effective accommodation would create an undue hardship for you, then you can move on to termination. However, undue hardship is a high bar to meet and should be considered thoroughly before determination.
You can learn more about accommodations on the platform by searching “the Americans with Disabilities Act.”
An employee worked unauthorized overtime. Do we have to pay them the time and a half for these hours?
Can we require exempt, salaried employees to turn in time sheets?
Answered by Laura Anderman, SHRM-CP
Yes. There are many reasons you might want or need to track exempt employee time. For example, you may opt to track an exempt employee’s hours for purposes of client billing, grant tracking, Family Medical Leave Act (FMLA), retirement or pension plans, or hours-based benefits calculations such as vacation accrual. However, as a general rule, we recommend focusing on whether the job is getting done instead of worrying about the exact amount of time spent in the office. Tracking exempt employee hours adds likely unnecessary work to their plate and to yours.
While you may choose to track the hours of exempt employees, ensure the information is not used to take deductions from an employee’s regular salary, unless such deductions are allowable under both state and federal law. An exempt employee’s salary should not fluctuate based on the number of hours worked within the workweek. Prorating an exempt employee’s salary based on hours worked may result in the loss of the exemption.
What questions should an employer avoid asking during the recruiting and interview process?
Answered by the HR Experts
You should avoid questions that are not job-related or that cause an applicant to tell you about their inclusion in a protected class. These would include questions about race, national origin, citizenship status, religious affiliation, disabilities, pregnancy, sexual orientation or gender identity, past illnesses (including use of sick leave or workers’ comp claims), age, genetic information, or military service. You should also avoid asking about things that might be protected by state law (e.g., marital status and political affiliation).
Asking these sorts of questions could result in rejected candidates claiming that the decision not to hire was based on their inclusion in these protected classes rather than job-related considerations. We recommend looking at your state’s protected class list to be sure you don’t run afoul of it.
During an interview, it is advisable to present the candidate with a copy of the job description that lists all essential job functions, including any physical requirements necessary to perform the job, and simply asking the candidate if they are able to perform the job duties listed. For example, if the position requires someone to lift 25 pounds repeatedly throughout the day, you should ask the applicant whether they can lift 25 pounds repeatedly throughout the day. You should not ask whether they have back pain or any other physical issues that might prevent them from lifting 25 pounds or if they’d filed a workers’ comp claim when doing manual labor in the past. If you need someone to work Sunday mornings, you should ask the applicant if they can work Sunday mornings. You should not ask if they attend church or have other commitments that would prevent them from working Sunday mornings.
If a candidate proactively acknowledges a disability or medical condition, we recommend that you refrain from addressing this candidate’s mention of it directly. Instead, confirm that the candidate can perform the essential functions of the position with or without reasonable accommodation. You’ll want to be certain that you are asking this question consistently of all candidates, and not just those who have disclosed a past medical condition or those you suspect may not be able to perform the essential functions of the position. It’s also important not to make assumptions about a candidate’s ability to perform their job based on their having disclosed that they have a disability or other health condition.
Finally, unless a candidate has an obvious disability or has voluntarily disclosed that they have a disability, we would not recommend asking applicants if they would need accommodation to perform job functions as it would have the effect of creating a pre-employment disability inquiry, which is prohibited under the Americans with Disabilities Act (ADA).
Should we have a COVID section in our employee handbook?
Answered by the HR Experts
While COVID will continue to affect our workplaces for some time, we generally recommend not adding COVID policies directly to your handbook. Guidance from the Centers for Disease Control and Prevention (CDC) continues to evolve, and federal and state laws related to the pandemic will continue to change as well. And as we’ve seen with OSHA’s Emergency Temporary Standard, courts can put employer obligations on hold (or resume their effective date) unexpectedly.
Instead of making changes directly to your employee handbook, we recommend incorporating COVID-related policy updates into a separate handbook addendum, or just a packet of policies and documents that each employee will receive. This is likely to be administratively easier to maintain and should also cut down on how much time employees spend looking for COVID-related policies when they need them. Keeping these policies separate also underscores that they are temporary and will be removed at the appropriate time.
Policies in a COVID addendum or policy kit may include a work from home policy, face-covering policy, workplace safety rules, vaccination policy, workplace sanitation procedures, and internal policy changes related to the pandemic (e.g., travel, paid time off, call-in procedure).
If you want to have a general policy related to illness that details when to stay home, whom to notify of an illness, etc., you could include that directly in the employee handbook. Just make sure that the policies there align with whatever you have included in your COVID addendum, if you have one.
What should I do if an employee moves to a different state and will be working from there?
Answered by the HR Experts
There are several things you need to do if an employee moves out of state:
- If you don’t already have other employees there, you’ll need to set up payroll tax accounts in the new state. The state in which the employee physically works is the state used for state income tax withholding, unemployment tax contributions, and the like.
- Update your employee handbook with any new state laws that apply. This is typically done with a state-specific addendum. Provide the updated handbook to the employee.
- Review that state’s new hire paperwork requirements. Updated forms used if necessary.
- Provide the employee with any required employment law posters for that state.
- Notify your workers’ compensation carrier and your health insurance carrier, if applicable.
Do managers need to be classified as exempt under the Fair Labor Standards Act?
Answered by the HR Experts
No, it’s fine to classify managers as nonexempt. You are under no obligation to classify any employees as exempt, even if they meet the criteria under the Fair Labor Standards Act. You could have an entire workforce of nonexempt employees, right up to the CEO. The important thing is to follow all wage and hour laws applicable to nonexempt employees, including paying them for overtime.
Having said that, there are advantages to classifying employees as exempt if they meet all the criteria. It’s administratively easier for you as the employer—no need to track hours for calculating overtime—and many employees prefer to be paid a salary that doesn’t change from week to week.
You can learn more about the criteria for classifying employees as exempt, such as the duties tests and salary thresholds, on the platform.
When can we deduct from an exempt employee’s pay?
Answered by the HR Experts
In general, if an exempt employee performs any work during the workweek, you must pay them their full salary amount. Deductions are allowed, however, for legally required withholding and benefit elections.
There are a handful of other situations in which a deduction from an exempt employee’s salary would be permissible under federal law:
- For any workweek in which the employee performs absolutely no work
- In the initial or final week of employment based on the number of hours actually worked
- For absences of one or more full days for personal reasons other than sickness or disability
- For absences of one or more full days due to sickness or disability, if the deduction is made in accordance with a bona fide paid sick leave plan (the Department of Labor has previously found that a plan that offered at least 5 paid days off for sickness qualified as bona fide)
- To offset amounts the employee receives from jury or witness fees or for military pay
- For penalties imposed in good faith for infractions of safety rules of major significance, in accordance with a clearly established workplace policy
- For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions
- For leave taken under the Family and Medical Leave Act
If none of these situations apply, an exempt employee must receive the full salary for any week in which they perform any work, regardless of the number of days or hours worked. In addition, some states do not allow all of these deductions.
One of our employees will be on leave while they go to rehab. What, if anything, should we tell the staff about the employee’s absence?
Federal law requires that you keep medical information you obtain confidential, so you should tell your staff only that the employee is out on leave. The employee’s direct manager or whoever does the scheduling may need to know the expected duration of the leave, but very few, if any, managers or staff will need to know why the employee is on leave. Rehab, like other reasons for extended absences, may become fodder for gossip, so minimizing who knows the reason for the leave lowers the risk of those details becoming public. If anyone comes to you with questions, you can remind them that, for the sake of everyone’s privacy, you don’t discuss any employee’s personal matters.
Can we require employees to have childcare if they work from home?
Answered by the HR Experts
We do not recommend having a policy that stipulates childcare is necessary. For one thing, in practice, it often isn’t necessary. Lots of employees are able to do their jobs just fine while supervising children in the home. Imposing this requirement (and a huge financial burden) won’t solve any problems, but it may encourage remote employees to start looking for a new job. Even in cases where supervising children does negatively affect job performance, mandating childcare as a solution could be seen as crossing a line into your employees’ personal lives.
Instead, we recommend setting clear expectations for attendance, availability, performance, and productivity. You can then discipline employees who don’t meet these expectations without giving the impression that you’re micromanaging their personal lives.
It’s also worth keeping in mind that employee expectations around remote work have changed. People choose remote work with the idea that they’ll have more flexibility during the day to attend to their personal responsibilities. If that flexibility isn’t an option, it’s important to make that clear so employees know what to expect.
Should we cancel our annual holiday party again this year?
Ultimately, that’s your decision. Some companies are forgoing an in-person holiday party again this year, while others feel like it’s safe enough to celebrate in person. Unfortunately, COVID cases and hospitalizations due to the virus are rising again in many places across the country. Also, the CDC continues to recommend that anyone who isn’t fully vaccinated, as well as fully vaccinated people in areas with substantial to high transmission, wear masks in public indoor spaces.
If you decide to host a party this year, here are some measures you may want to consider:
- Look for outdoor spaces or well-ventilated indoor venues with enough room for people to spread out.
- Require employees to be vaccinated or tested before attending the party. Pay for testing if you require it.
- Require anyone who is under the weather (for any reason) to stay home. If there are raffles or gifts at the party, ensure those who stay home for their own safety or the safety of others are included.
- Make sure employees know that the holiday party is completely voluntary. No work or company business should be conducted during this time. Employees who are uncomfortable attending should not be pressured in any way to attend.
- Host a virtual party instead or as an alternative for those who can’t or don’t want to attend in person. You could provide gift cards to local eateries or food delivery services, organize a home decorating or ugly sweater contest, and facilitate interactive games.
Answer by: Kyle Cupp, PHR
When does the Form I-9 need to be completed?
All new employees must complete Section 1 of Form I-9 on (or before) their first day of employment. Then, within three business days following their start date, they must submit acceptable proof of their identity and eligibility to work in the United States.
As for your end, you must complete Section 2 within those same three business days with the employee’s document(s). If the duration of the job will be fewer than three days, you must complete Section 2 no later than the first day of employment. Section 2 is generally done at the time the employee brings in their identifying documents, as it asks for specific information about these forms of identification. As a reminder, documents must be presented in-person, and the employer representative that reviews them must fully complete Section 2 of the form.
Answer provided by: Monica, SPHR, SHRM-CP