Crucial Concepts in HR What You Need to Know NOW !

1. Crucial Concepts in HR What You Need to Know NOW!

2. Lets Get Acquainted • Please share a little about yourself and your organization: • Name, Job Title • Employer Name and Industry • Number of Employees, Montana only or multi-state • Federal grants or Contracts? • Our Sponsors Today

3. Overview of The Day • Breaks every hour or so • Lunch on Your Own • Location of Restrooms • Please turn off your cell phone • The handouts have additional information in the appendices that we will not discuss today

4. Overview of the HR Function • Many laws (See appendix A) apply to the employment relationship. Which rules apply to your organization depend on the following: • Sector - Public, Private, Non-Profit • The existence of governmental contracts or grants • The number of people you employ • Annual Revenues • The existence of collective bargaining agreements • The jurisdictions in which you operate • This is a partial list

5. Discrimination and Harassment

6. Discrimination Overview • Discrimination based on a protected characteristic in unlawful for all employers in Montana • The law prohibits discrimination before, during and after employment • Discrimination laws apply to nearly every decision and to nearly all employers

7. Protected Classes • The following characteristics of an employee, applicant or former employee are protected from discrimination: • Race, Color or National Origin • Sex, Age, Marital Status, Religion • Disabilities, Family Medical History, Veterans Status • Sexual Orientation in some Cities • Missoula, Helena, Butte, Bozeman

8. Forms of Discrimination • Discrimination can take a number of forms: • Hiring or refusing to hire relatives or associates • Setting minimum or maximum ages for jobs where not supported by law • Not hiring or rehiring veterans or National Guard/Reservists • Refusing religious scheduling accommodations • Conducting medical exams before conditional offer of employment has been extended

9. Forms of Discrimination • Refusing to hire pregnant applicants • Asking suspect questions before hire that reveal protected class information • Asking questions about current or prior disabilities and prior work comp injuries • Asking questions about medical history of family members

10. Forms of Discrimination • Discrimination can be direct (treating individuals differently due to protected class), or; • Indirect (making employment decisions that negatively impact protected workers • Discrimination includes harassment, retaliation and discrimination due to a relationship with another individual

11. The Interactive Conversation • If a Disability or religious conflict raises concerns regarding the candidate's ability to perform the "Essential Functions of the Job", employers must engage in an "Interactive Conversation" to identify possibleaccommodations

12. Criminal Records • The EEOC discourages refusals to hire based on unrelated or older convictions or convictions • The guidance suggests employers should have pre-established criteria regarding disqualifying convictions before applying the criteria • EEOC discourages refusals to hire based on arrests or having any record

13. Harassment in Employment • Harassment can be based on any protected characteristic (sex, race, pregnancy, etc.) • Harassment is Defined as: • Tangible adverse actions based on an individual's willingness to submit to harassing behavior, OR; • Intimidating hostile or offensive work environments

14. Harassment Can Occur • When supervisors harass subordinates • When workers harass co-workers • When a customer or visitor harasses an employee • When an employee harasses a customer • When an employee benefits from voluntary participation in consensual relationships

15. Harassment • Harassment: • Need not be intentional- it is the result that counts • Can occur away from the workplace if the perpetrator has work authority over the victim • Is usually directed at “low power” individuals in vulnerable positions

16. Case Studies • Are these individuals considered “disabled” under the ADA? • A person with controlled epilepsy? • A pregnant woman? • An individual who used marijuana a few days ago? • An individual has diabetes causing frequent unscheduled absences from work.   • She requests the ability to “come to work when she can”. Might this request be a “reasonable accommodation?

17. Case Studies • A registered nurse announces that she no longer can work from Friday at sundown until Saturday at sundown due to religious reasons. Nurses have always been scheduled on a seniority basis and you discussed this with her at the time of hire.   • Must you reschedule her working hours?

18. Case Studies • An employer has a policy that prohibits employees from discussing their salary with other employees. • A female employee is at lunch with a group of other employees and asks them point blank what their salary is. She tells you she thought that she made less money than male employees who do similar work. • Is the employer justified in disciplining the employee?

19. Wage & Hour

20. Wage and Hour Overview • The FLSA sets requirements for minimum wage, overtime pay, recordkeeping and child labor for full and part time employees. • Montana has a state wage and hour law that tends to be more protective of employees than the FLSA.

21. Min Wage and Overtime • All non-exempt employees must be paid at one and a half times the regular rate of pay for all hours worked beyond 40 hours per workweek • Both the FLSA and Montana law provide exemptions from overtime and/or minimum wage • Designating an employee as ‘salaried' does not automatically qualify the employee as ‘exempt' from overtime pay requirements

22. Overtime Exemptions • White Collar- Executive, Administrative, Professional, Computer-related, Outside Sales • Other Exemptions- Retail sales, mechanics, certain drivers, newspaper deliverers, lumberyard employees, farm workers, seasonal workers (each under certain circumstances)

23. White Collar Exemptions • The following must be true for all positions for which an employer claims and exemptions (except outside sales and computer exemptions) • Minimum Salary of $455 a week except for the computer exemption which requires $1105.20 a week • No minimum salary for Outside sales, doctors, lawyers • Salary Basis Form of Payment- Must comply with salary basis pay deduction rules

24. Predominate Duty Test- Generally 51% or more of working time must be spent performing exempt job duties • Nature of Work (See handouts page 6 for detail)

25. Outside Sales Exemptions • Outside Sales Representatives are exempt if their primary duty is making sales or obtaining orders for services or for the use of facilities for which a consideration will be paid by the client or customer; and • they are customarily and regularly engaged away from the employer's place of business in performing the sales duties

26. Retail Sales Exemption • An individual employed in a retail establishment is exempt from overtime if: • he/she receives over half their pay in the form of commissions and • the regular rate exceeds 1 1/2 times the minimum wage during a representative period of time of at least 30 days • “Retail” is defined in regulations • 51% rule

27. Minimum Wage • Employers must pay covered non-exempt employees no less than the current minimum wage. • Federal Minimum wage is $7.25 ($10.10 for federal contractors) • State minimum wage is $7.90 (inflation adjusted each January) • Montana employers may not use tip credit or other sub-minimum rules

28. Child Labor • Workers under 18 years old. are limited in work they may perform • The FLSA has specific requirements for youth ages 14–15 and youth ages 16–17 • The requirements generally pertain to types of jobs allowed and for how much time during each workweek. • After age 18 a person may perform nearly any job, including hazardous jobs without restrictions

29. Time Worked • Breaks And Lunches: • If the break exceeds 20 minutes and the employee is relieved of all duty/responsibility, it is considered to be a meal period and the time is not counted. • Otherwise the time is considered a rest period and the time is counted as "Time Worked"

30. Time Worked • Waiting And On-call Time: • If the employee is free to use the time for his/her own purposes the time may not be working time

31. Time Worked • Travel Time: • Home to work travel time is normally not counted. • If traveling during work day, time is counted even if it extends workday • If traveling out of town, time traveling during normal work hours is time worked even if traveling on non- scheduled work day

32. Time Worked • Training and Meetings: • Time spent in meetings, training, etc is not working time if all four following rules are followed: • The meeting is outside regularly working hours • Meeting attendance is voluntary with no repercussions for non-attendance • The subject matter of the meeting does not relate to employee's current job duties • No productive work is performed during the meeting

33. Time Worked • Working Without Permission: • If an employer knows, or has reason to know, an employee has worked and does not act to stop the employee from working, the time may be considered approved

34. Time Worked • Volunteers • Employees cannot work "off the clock" • Real volunteers can only work for a non-profit • Special rules exist for interns • Montana restricts volunteers to individuals who are not already employed by the entity • Volunteers can be reimbursed for certain expenses but cannot be paid more than a nominal fee that is not based on productivity

35. Overtime Rules • Employers must pay 1.5 times the regular rate as overtime to non-exempt employees who work over 40 hours during a seven day workweek • No 8 hr/day overtime in MT • Time may not be averaged against another week • Employers do not have to count time for which an employee is paid but did not work when computing hours

36. The Regular Rate • The Regular Rate is obtained by dividing all pay (including non-discretionary bonuses, commissions, etc. but not including statutory exclusions) by the number of hours worked during the workweek • Certain payments such as expense allowances and reimbursements for some expenditures may need to be included to the extent they exceed the actual or reasonably approximate cost

37. Wage Payments • Timeliness of Payments • Wages are due and payable within 10 days for continuing employees; • The next pay day or 15 days for terminating employees • Wages for employees terminated for cause or laid off are due immediately unless the has adopted a written policy providing for payment on a later date- but no later than the sooner of 15 days or next pay day

38. Withholding From Wages • Montana prohibits withholding wages for theft, breakage, shortages, waste, etc • Employers may withhold for room, board, etc. when agreed to in advance of employment • Free and Clear payment of wages required

39. Electronic Wage Payments • Employers must have written employee permission in writing • Employees must opt into electronic wages not opt out • Additional rules exist related to fees charged and to payment by debit pay card

40. Case Studies 1. An employee turns in the following time sheet for a two week pay period: The Employee is paid $10.00 plus commission. During Week One the employee earns  $200 in commission.  During Week Two the employee earns no commissions. Calculate the wages for the two week pay period.

41. Case Studies • Which of the Following individuals may be exempt from overtime? • A Computer programmer who earns $60,000 per year. • A salesperson who sells advertising over the phone for a newspaper. • A truck driver that hauls cargo between Montana and Salt Lake City • An insurance agent who works for an insurance brokerage.

42. Case Studies • Which of the following might be working time? • A staff meeting held after working hours to discuss the company’s new health insurance benefit plan. • An employee of a travel agency who is taking a discount vacation to visit a new resort that the company will represent. • An employee who is on call and is required to be no further than 20 minutes from work during the on call period.

43. Case Studies • A restaurant has a long established policy that employee are required to share a percentage of their tips with cooks and employees that “bus” tables. • A recently hired employee refuses to share her tips. • Is the employer within its rights to enforce its policy?

44. What’s New

45. The Affordable Care Act • Employers that provide "applicable employer-sponsored coverage" under a group health plan are subject to a reporting requirement • IRS has granted relief for employers filing fewer than 250 W-2 forms by making this requirement optional until further guidance is issued

46. Shared Responsibility Payment • The annual employer mandate fee is a per employee fee for employers with over 50 full-time equivalent employees who don't offer health coverage to full-time employees • An FTE is 30 hours worked per week • The employer mandate is based on full-time equivalent employees, not just full-time employees

47. The fee is based on whether or not you offer affordable health insurance to your employees that provides minimum value. • The annual fee is $2,000 per employee if insurance isn't offered and 1+ employee receive subsidy • The first 30 full-time employees are exempt • Fee is assessed monthly and is not tax deductible

48. Small Employers • Employers With Fewer Than 50 FTE (30 hr week=1 FTE) are NOT subject to penalty if not offering affordable healthcare coverage but may qualify for tax credit to help pay for insurance

49. Intermittent Employees • Employers may use a “lookback period” of 3 to 12 months to determine if coverage must be offered to intermittent or seasonal employees • No penalties apply for not offering insurance during lookback period • If employee worked more than 1,560 hrs then they are eligible for insurance (or would incur a penalty) for the remainder of the stability period

50. Federal HR Update • The US Supreme Court declined to expand the definition of supervisor for vicarious liability purposes. Vance v Ball State University • Social Media Policies- • The NLRB has disapproved a number of policies that limit employee’s social media discussions of terms and conditions of employment as being violations of Section 7 of the NLRA