3/2/2017 AGENDA WHY THE CHANGE? TIME OFF TRENDS: BENEFIT IMPACTS AND LEGAL ISSUES EVALUATION OF TIME OFF POLICIES LEGAL ISSUES SURROUNDING TIME OFF

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1 TIME OFF TRENDS: BENEFIT IMPACTS AND LEGAL ISSUES AGENDA EVALUATION OF TIME OFF POLICIES LEGAL ISSUES SURROUNDING TIME OFF PUTTING NEW POLICIES IN PLAY OTHER CONSIDERATIONS WHY THE CHANGE? CONSCIOUS DECISIONS TO ACCOMMODATE GROWTH BE THE ONE EMPLOYER FURTHER ALIGN SALES & SERVICE 1

2 PLAYING TO OUR STRENGTHS Responsible Time Off EVALUATION OTHER AGENCIES BEST PRACTICES EMPLOYEE DEMOGRAPHICS BUSINESS LEADERS LEGAL COUNSEL WHY RESPONSIBLE TIME OFF? CULTURE OF TRUST & EMPOWERMENT FOCUS ON RESULTS FLEXIBILITY THINK LIKE AN OWNER RECRUITING AND RETENTION 2

3 WHAT DIDN T CHANGE EMPLOYEES REQUEST PTO IN ADVANCE LEADER APPROVES PTO REQUESTS CAN DENY A REQUEST ACCOUNT FOR UNPLANNED ABSENCES POTENTIAL LEGAL CONCERNS/IMPLICATIONS LEGAL IMPLICATIONS: DEFINED PTO TO UNDEFINED POTENTIAL LEGAL CONCERNS/IMPLICATIONS FMLA ADA SHORT TERM/LONG TERM DISABILITY POLICIES WAGE AND HOUR ISSUES SUBJECTIVITY USERRA OTHER TRANSITIONING FROM DEFINED PTO TO UNLIMITED PTO CONFORMING POLICIES 3

4 LEGAL ISSUES: FMLA THE FAMILY MEDICAL LEAVE ACT (FMLA) GIVES ELIGIBLE EMPLOYEES 12 WEEKS OF JOB PROTECTED LEAVE. UNPAID LEAVE ALTHOUGH EMPLOYERS CAN ELECT TO PAY IT, EMPLOYEES CAN CHOOSE TO USE AVAILABLE PAID LEAVE OR EMPLOYERS CAN REQUIRE EMPLOYEES TO USE AVAILABLE PAID LEAVE. Standard PTO Employees exhaust paid leave Remaining time unpaid; encourages return to work Unlimited PTO Employees never exhaust paid leave All FMLA leave paid; no financial incentive to return to work LEGAL ISSUES: FMLA THE FAMILY MEDICAL LEAVE ACT (FMLA) GIVES ELIGIBLE EMPLOYEES 12 WEEKS OF JOB PROTECTED LEAVE. STILL NEED TO ENSURE LEAVE IS DESIGNATED AS FMLA LEAVE. RETURN TO WORK IS GUARANTEED AT THE END OF 12 WEEKS (WITH CERTAIN LIMITED EXCEPTIONS). FAILURE TO DESIGNATE LEAVE AS FMLA MAY RESULT IN EMPLOYEES GETTING ADDITIONAL TIME OFF OR LIABILITY FOR AN FMLA VIOLATION. WANT TO RUN THE 12 WEEK CLOCK SO YOU CAN MAKE EMPLOYMENT DECISIONS. LEGAL ISSUES: FMLA THE FAMILY MEDICAL LEAVE ACT (FMLA) GIVES ELIGIBLE EMPLOYEES 12 WEEKS OF JOB PROTECTED LEAVE. ACTION ITEM: NEED A PLAN TO ENCOURAGE EMPLOYEES TO PROVIDE FMLA INFORMATION. Penalty for Failure to Return Paperwork Notice of Absences Aggressively Designate 4

5 LEGAL ISSUES: FMLA UNLIMITED PTO CAN MAKE IT DIFFICULT TO MANAGE FMLA ABUSERS. CRITICAL TO DESIGNATE FMLA LEAVE SO YOU CAN MOVE PAST JOB PROTECTED STATUS. CAN TAKE A LONG TIME. MANAGERS NEED TO UNDERSTAND LEGAL IMPLICATIONS OF TAKING ADVERSE ACTION. NEED TO SEPARATE POOR PERFORMANCE FROM ABSENCES. LEGAL ISSUES: ADA THE AMERICANS WITH DISABILITIES ACT (ADA) REQUIRES EMPLOYERS TO ACCOMMODATE DISABILITIES. ACCOMMODATIONS CAN INCLUDE (BUT CERTAINLY ARE NOT LIMITED TO) TIME AWAY FROM WORK, REDUCED WORK SCHEDULES, MODIFIED WORK SCHEDULES, ETC. THIS INCLUDES ADDITIONAL TIME AFTER FMLA LEAVE. LEGAL ISSUES: ADA UNLIMITED PTO COMPANY ANNOUNCEMENT THAT YOU DO NOT NEED TO RESTRICT LEAVE. COMPANY DECISION THAT IT IS NOT A BURDEN TO HAVE PEOPLE TAKE LEAVE AS THEY SEE FIT. REASONABLE ACCOMMODATIONS MUST BE MADE UNLESS IT WOULD IMPOSE AN UNDUE BURDEN. TYPICALLY THE BURDEN MUST BE MORE THAN FINANCIAL. 5

6 LEGAL ISSUES: ADA IMPORTANT TO DOCUMENT THE ACTUAL BURDEN FROM HAVING THE PERSON OUT OF THE OFFICE. WALKING A FINE LINE (ESPECIALLY WITH FMLA) OF NOT RETALIATING AGAINST SOMEONE FOR TAKING LEAVE, BUT UNDERSTANDING WHY THEIR ABSENCE IS AN UNDUE BURDEN. COMPARE THE ABSENCE TO OTHER EMPLOYEES ENSURE THE ABSENCES ARE GREATER THAN OTHER, NON-DISABLED EMPLOYEES. LEGAL ISSUES: SHORT TERM/LONG TERM DISABILITY MANY EMPLOYERS HAVE A SHORT TERM OR LONG TERM DISABILITY POLICY INTENDED TO OFFSET AN EMPLOYEE S LOSS OF INCOME. SHORT TERM DISABILITY IF NOT AN ACTUAL POLICY MAY BE OBSOLETE. IF YOU HAVE AN ACTUAL SHORT TERM DISABILITY POLICY, YOU WILL WANT TO CONSIDER IF IT IS WORTH USING IT TO SUPPLEMENT PTO. DOES YOUR POLICY ALLOW IT? IS IT MORE HASSLE THAN IT IS WORTH? HOW WILL YOU ENFORCE IT? LONG TERM DISABILITY POLICIES ARE A LITTLE DIFFERENT. WILL WANT TO HAVE A TRIGGER WHERE EMPLOYEES WHO BECOME ELIGIBLE MUST APPLY AND PTO ENDS. LEGAL ISSUES: WAGE AND HOUR ISSUES SOME STATES REQUIRE PTO TO BE PAID ON TERMINATION. MAKE CLEAR UNDER NEW POLICY PTO IS NOT ACCRUING. EMPLOYEES DO NOT HAVE A PTO BANK. BETTER DESCRIPTIONS: FLEXIBLE SCHEDULING PERMISSIVE LEAVE FOR EXEMPT EMPLOYEES, THIS MAY CHANGE YOUR ABILITY TO HAVE ANY UNPAID DAYS RELATED TO SICKNESS OR DISABILITY. FOR PROTECTED LEAVE (FMLA, USERRA) YOU WILL NEED TO PAY MOST BONUSES UNLESS THEY ARE CONDITIONED ON MEETING CERTAIN TYPES OF MILESTONES (THIS IS ALWAYS TRUE, NOT JUST WITH UNLIMITED PTO). 6

7 LEGAL ISSUES: SUBJECTIVITY THINK CRITICALLY: HOW WILL YOU MANAGE ATTENDANCE? HOW WILL YOU JUDGE PERFORMANCE? HOW WILL YOU TRACK ATTENDANCE? ATTENDANCE AND PTO ARE TYPICALLY VERY OBJECTIVE CRITERIA FOR PERFORMANCE MANAGEMENT. NEED TO ENSURE EMPLOYEES ARE BEING FAIRLY COMPARED. NEED TO AVOID CONSIDERING PROTECTED ABSENCES. NEED TO EDUCATE MANAGERS ABOUT EXPECTATIONS. LEGAL ISSUES: USERRA UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) USERRA REQUIRES THE MOST BENEFICIAL TREATMENT. IF YOU PAY EMPLOYEES ON OTHER TYPES OF LEAVE AT 100% (I.E., FMLA, ADA, EXTENDED VACATION, ETC.) YOU WILL ALSO HAVE TO PAY AT 100% FOR USERRA LEAVE. LEGAL ISSUES: OTHER POTENTIAL IMPLICATIONS JURY DUTY MUST BE PAID IN FULL WITH AN UNLIMITED PTO PLAN. OTHER PROTECTED LEAVES AND BREAKS (MAY VARY BY STATE) MUST BE PAID: NURSING MOTHERS, CRIME VICTIM, COURT LEAVE, VOLUNTEER FIRE FIGHTER, PARENTAL LEAVE, ETC. CONSIDER HOW YOU WILL MANAGE EXTENDED ABSENCES (ILLNESS, USERRA, LEAVE FOR PERSONAL OR PROFESSIONAL REASONS): MUST WORK AT LEAST X% OF THE YEAR TO REMAIN ELIGIBLE MAXIMUM LENGTH OF LEAVE 7

8 CONFORMING POLICIES ENSURING EVERYTHING MATCHES WITH THE NEW PLAN. CONFORMING POLICIES NEED TO CHANGE MORE THAN JUST YOUR PTO PLAN. ALL LEAVE OF ABSENCE PLANS: FMLA, MATERNITY, PATERNITY, SHORT TERM DISABILITY, LONG TERM DISABILITY, ADA, OTHER LEAVE. ATTENDANCE PLANS DISCIPLINARY RULES? PERFORMANCE REVIEW CRITERIA? COORDINATION WITH OTHER BENEFITS IF GONE MORE THAN 10 DAYS, ABSENCE HANDLED UNDER LEAVE OF ABSENCE POLICY MUST COMPLETE APPROPRIATE PAPERWORK FOR TIME AWAY IF NO PAPERWORK RECEIVED, TIME OFF MAY BE WITHOUT PAY 8

9 TRANSITIONING FROM DEFINED PTO TO UNLIMITED PTO WHAT TO DO WITH PTO BANKS TRANSITIONING PLANS IF YOU HAVE A POLICY OF PAYING OUT PTO OR OPERATE IN A STATE THAT REQUIRES PAYOUT, YOU CANNOT SIMPLY ERASE PTO. EVEN IF YOU DO NOT FALL IN ONE OF THESE CATEGORIES, IT MAY CREATE EMPLOYEE RELATIONS ISSUES TO ELIMINATE PTO. POTENTIAL OPTIONS: BUY OUT EXISTING PTO BANK IT FOR TERMINATION LONG TRANSITION PERIOD WITH ABILITY TO USE PTO SABBATICALS OR OTHER EXTENDED ABSENCES COMBINATION TRANSITIONING PLANS WANT ALL TRANSITION DOCUMENTS TO BE VERY CLEAR AND EXPLICIT. IF EMPLOYEES ARE GIVEN A CHOICE, NEED SIGNED WAIVER AND/OR ACKNOWLEDGEMENT. CRITICAL TO CONSIDER STATE LAW. 9

10 WHAT HAPPENED TO EXISTING BANK? OFFERED TWO OPTIONS FLEXIBILITY IN TRANSITIONING EMPLOYEE S EXISTING BANKS HOW DID WE INTRODUCE & EDUCATE? 1 Leader Communication and Education 2 Employee Communication and Education OTHER NEW BENEFITS CELEBRATE + PARENTAL LEAVE + VTO 10

11 WHAT WE LEARNED LEADERSHIP SUPPORT EDUCATION/COMMUNICATION FLEXIBILITY LOOKING AHEAD EVALUATION OF EMPLOYEE TRENDS LEADERSHIP DEVELOPMENT TOTAL REWARDS EVALUATION OTHER PLAY OPTIONS 11

12 QUESTIONS? 12