Courts love to remind businesses that they have “needs to know” and a need to know what they “reasonably should have known.” There is just no way to get around the liability. Recent rulings and changes in regulation drive this liability home with at least three new “needs to know.”
Department of Labor on overtime:
The DOL last updated overtime regulations in 2004. Beginning in 2016, the new regulations will require periodic adjustments to calculating overtime on a continuing basis. The Notice of Proposed Rulemaking (NPRM) remains open to review and unclear about the effective date(s) of changes.
The rules direct employers of salaried employees currently classified by the employer as “exempt” because of their administrative, executive, professional, outside sales, or computer employee duties. What job description duties will identify those as “exempt” remain to be determined.
The salary threshold that partly determines employee eligibility will rise from $23,660/year to $50,440/year. (That is also a move from $455/week to $970/week.) That change opens the overtime door to millions more workers a year. (White House.gov claims 4,680,000 affected workers based on 2011-2013 pooled date.) More than half the affected workers will be women and/or over age 35.
Those previously exempted as “highly compensated” employees at $100,000/year will see their threshold increased to $122,148. An increasing number of well-placed employees make this kind of money without having managerial or executive exclusion.
Employers will need to know or should have known what employees are eligible for overtime or not. And, it would not be prudent to redefine those duties after the implementation of the new regulations. What your PEO knows is the timing, the coding, and all the intricacies in calculations, reporting, and compliance.
Occupational Safety and Health Administration on investigations:
One way OSHA addresses being short-staffed is to push its investigations down the ladder. Of the almost 5,500 claims filed with OSHA since January 1, the agency has shared the responsibility on 46 percent of them with the employer of origin.
For starters, the employer must report within 24 hours any injury requiring hospitalization, amputation, or loss of an eye. This “rapid-response” strategy presses the employer to launch its internal investigation promptly in advance of OSHA’s subsequent call.
This quick response mechanism lets OSHA offer advice on required action and investigatory paths it will want to see. OSHA is clear that it is looking for employers who blame incident victims, who are ignorant of high-risk hazards, and who have missed patterns of injuries. With increased data, the agency hopes employers can make better-informed decisions.
In short, OSHA is tightening its regulation of those employers who claim not to know what they should have known about risk hazards and management. What your PEO knows is exactly what OSHA wants and when they need it.
8th U.S. Circuit Court of Appeals on FMLA:
Sending a clear message that employers cannot hide among the complexities of the Family and Medical Leave Act, the 8th Circuit Court ruled on interference and related discrimination. A well-known large employer had a policy requiring employees to report any unplanned absence in a personal call to their direct supervisor.
An employee took off a few days needing to see a doctor. His girlfriend, who also worked for that employer, personally told his supervisor that he was ill and would miss a few days. And, the employee sent a text message to the supervisor reporting his absence and need to see a doctor. The employee was absent for 11 days and returned with a written doctor’s excuse. He was terminated for failing to directly notify his supervisor for five specific days of the absence.
The Court of Appeals pointed to a number of inconsistencies of fact in the employer’s defense. But, the essence of the decision told this employer and any employer - considering similar disciplinary action – to have facts and rationale straight. Leaving termination decisions to the bottom of the organizational ladder puts all stakeholders in jeopardy. So, there is no hiding behind rules that require a specific notice that conflicts with the intent of the FMLA policy. Your PEO knows all there is to know about FMLA and has all the data and resources to relieve you of the judgement calls and execution.
Now, all these new “needs to know” have a data aspect. Each needs some current and future thinking about how your Human Resources information interface serves your employee and employer interests. And, in each case, your PEO has the advantage. Let them deal with your Human Resources “needs to know” while you focus on your core business decisions – in construction, hospitality, healthcare, landscaping, retail, or any other industry.