4/12/2016. Session Objectives

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1 Hot Topics in HR for Arkansas MGMA 2016 Annual Conference Copyright 2016 State Volunteer Mutual Insurance Company Session Objectives Identify areas on which the DOL is focusing audit Understand the keys to compliance Understand the pending changes to employee classification in 2016 and impact on your practice Identify the key updates needed in handbooks Identify what should and should not be in the employee file 2 Department of Labor Audits Who/What/Why? 3 1

2 PPACA s 30 hour Coverage Threshold Employees who average 30 hours of work each week now eligible for coverage under PPACA Patient Protection Affordable Care Act Large Employers Trends to keep employees below 30 hours resulting in offthe-clock work Employers with 50 or more FTE requirements - IRS Form 1095-C Steps Toward Compliance for Your Practice Require that all work must be done on the clock Encourage staff to bring questions to you Routinely audit time records 4 Wage Theft New Term Old Problem Disturbing increase in wage theft cases Wage theft violations involving pay Surveys show 68 percent have experienced Wage theft offenses Federal Fair Labor Standards Act violation Paying insufficient overtime Violating minimum wage rules Off-the-clock claims Misclassifying workers as exempt instead of non-exempt Retaliation Misclassifying workers as independent contractors From SHRM Article Volume 59 No 7 by Eric Krell 5 Manager s Role in Preventing Claims of Wage Theft Know your state and federal laws Evaluate your employee classification annually Exempt versus Non-Exempt Job Descriptions should match the work being done Interview employees Monitor time cards 6 2

3 Employers Keys to Compliance with DOL 7 FLSA Overtime Pay Know the Rules OVERTIME PAY Must be paid for any hour or portion of an hour over 40 hours per week which an employer suffer or permits an employee to work Workweek equals 7 consecutive 24 hour periods One workweek = one period of 168 hours (seven consecutive 24 hour periods) Include breaks up to 20 minutes and on-call time One and one half times regular rate Must be paid in the regular pay period during which the overtime is earned NO COMP TIME for hourly employees 8 Fair Labor Standards Act Rest/Meal Breaks Mid morning/afternoon breaks not required by federal laws Arkansas does not require employers to provide meal period or break to employees 16 years of age or over, thus the federal rule applies Federal law does not require meal period or breaks If breaks are less than 20 minutes must be paid Lunch/Meal period usually 30+ minutes not paid and employee should not perform work while off the clock 9 3

4 INA Immigration and Nationality Act of 1986 USE the most recent revised I-9 Form effective 03/07/13 available at: USCIS - Expired Form I-9 Still in Effect until proposed version is approved Form I-9 will be available for download at E-Verify Allows employer to verify eligibility of new hires online with Department of Homeland Security and Social Security Administration Not required in Arkansas Only for use on newly-hired employees; and to re-verify if their status has an expiration date E-Verify is in addition to I-9 Form If Comprehensive Immigration Reform (CIR) passes E-Verify will be required for all states 10 INA Immigration and Nationality Act of 1986 I-9 Form Must be completed accurately Does not replace e-verification Must be kept in separate file Can be stored electronically Effective 8/23/10 Do Not ask applicant to complete until offer made Do Not tell the employee which documents to present Do Not accept photocopied duplicates of documents Do Not ask an applicant if he/she is a U.S. Citizen New revised form effective 3/2013 has two new fields for address and telephone number Why employers should be concerned 11 New Hire Reporting - Arkansas Requirements No one is exempt from reporting within 20 days of hire date Who do you report on? All employees newly hired or recalled to work Includes temporary, seasonal and part-time What method or options do you have? Electronic website Electronic transfer Mail or Fax 12 4

5 Labor Laws Knowing the Rules Applies to? Civil Rights Act ADEA ADA - ADAAA ERISA COBRA OSHA FMLA FLSA Pending Changes May Impact Your Practice Exempt Versus Non-Exempt Overtime Meals and Breaks 13 Title VII Civil Rights Act or More Employees No Employment Discrimination with Respect to Race, Sex, Color, Religion, Creed, Ancestry, Pregnancy, Childbirth, or Related Medical Conditions, Veteran Status, or any other protected class 14 ADEA Age Discrimination in Employment Act 1967 No Discrimination with Respect to Age Protects Age 40+ Supreme Court Update- Age must be decisive factor in the action taken by an employer to prove age discrimination. (June 18, 2009) United States Supreme Court ruling permits mandatory arbitration of ADEA claims. (April 1, 2009) RIF (Reduction in Force) Selection Criteria should be included in age claim releases 15 5

6 ERISA Employee Retirement Security Act 1974 Retirement Program Safeguards No Favoritism Based on Salaries ERISA DOL Audits on the Rise to Ensure Participants are brought into plans when first eligible informed of their benefits rights told where to get information and Receive information - reflects accurate plan information 16 COBRA Consolidated Omnibus Budget Reconciliation Act FTE or More Employees Continued Health Insurance Coverage After Termination Up To 18 Months Coverage Employee Pays Premium 17 Family and Medical Leave Act or More Employees 12 Weeks Unpaid Leave Job Protection FMLA Audits are on the Rise Refusing to authorize FMLA requests Discouraging workers from using FMLA Manipulating hours to avoid responsibility under FMLA Discrimination based on employee requests for FMLA What to do? Review your policies and train managers 18 6

7 Fair Labor Standards Act - Wages New Minimum Wage National $7.25 per hour- effective July 24, 2009 ($10.10 Federal Employees) 29 States now have minimum wage above $7.25 Arkansas minimum wage January $ $8.50 Arkansas Minimum Wage Applies to 4 or more employees Copyright EEOC - Goal to Prevent Workplace Hostility EEOC priority to eradicate harassment Increase in related class actions Employer policies aren t enough Must address all forms of harassment Corrective action may apply to not only harassment but also to inappropriate conduct Three reasons to train supervisors They know what to look for Fewer complaints Training strengthens the enforcement 20 Pending FLSA Changes The Impact on Your Practice 21 7

8 Pending Changes In Classification Requirements The Impact on You Salary Based Test Proposal by DOL Now $455 per week or $23,660 per yr $921- $970 per week or $47,892/$50,440 Yr. Establish mechanism for routinely updating annually Advanced Preparations Review all current employee classifications Review job descriptions to support classification if exempt Determine how you will be affected - financially 22 Is it Time to Update your Employee Handbook 23 Top Employee Handbooks Updates for Disclaimer that the handbook is not an employment contract Discussion of salary and benefits NLRA National Labor Relations Act Policies threatening employee disciplinary action for discussion Social Media and Data Privacy Reasonable Accommodation with regard to protection 15 or more employees Retaliation for complaints or grievances Wages, Payroll and Attendance Rules State-Specific Laws stay abreast of your state laws Leave Benefits Drug Free Workplace 24 8

9 What Should and Should Not be in the Employee File 25 What Should and Should Not Be in the Employee File What Does Go in the Employee File Application Background checks College transcripts Job descriptions Status changes Certification and licensure Letters of recognition Disciplinary notices or documents Performance evaluations Exit interviews Termination records What Does Not Go in Employee File Medical insurance records EEO/invitation to self identify Disability or veteran status records Immigration (I-9) forms Safety (OSHA) training records Child support records Garnishment records Litigation documents Workers compensation claims Requests for employment/payroll verification for current position (example credit application) 26 Retention Requirements What do you Maintain? 3 Years Time Cards Applications/Resumes/Interview forms 7 Years Payroll Records Indefinitely Personnel Files OSHA - Individual Staff Files 30 years past employment 27 9

10 Disclaimer: The information and any commentary contained in these training materials is for informational purposes only. Every reasonable effort is made to ensure that the information and commentary are accurate and up-to-date, but SVMIC makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, or suitability of the information, products, or services in these materials for any purpose. The information and commentary in these materials do not and are not intended to constitute advice (legal or otherwise) to any person or entity on a specific situation or matter. You should always consult a qualified professional for advice regarding and tailored to your specific circumstances. 28 Questions?? Kathy R. White, FACMPE, PHR Senior Medical Practice Consultant Medical Practice Services Department Corporate: /Direct Office: Mobile: Kathyw@SVMIC.com 29 10