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Are we required handbook

Are We Required to Provide Handbooks In Spanish?

Question:
If we have a substantial number of Latino employees, are we required to provide our employee handbook in Spanish?

Answer:
While providing an employee handbook in additional languages — or having an employee handbook at all — is not a requirement, it is a 

best practice if a significant portion of your workforce is not fluent in English. Generally, if you have 10 percent or more of your workforce speaking a language other than English (in your case, Spanish), we recommend making your handbook available in that language.

The same goes for any type of accommodation you may want to make if a substantial number of your employees need it to receive the information in your handbook. This includes writing to a low literacy level, or providing it in braille or audio tape for the visually impaired.

Remember that an employee handbook gives you the best opportunity to clearly communicate your company policies, outline expectations for employees to follow, and help protect you from liability. In some cases, such as with antiharassment policies, the failure to communicate the policy in the language that your employees speak may increase your risk of liability in the event of a lawsuit.

For more information, contact the Congruity HR team of professionals at : 844.247.4100.

Marijuana

Marijuana Use In the Workplace.

Question:
Can we maintain a zero-tolerance marijuana use policy in our workplace if medical marijuana use is legal in the state?

Answer:
Yes, you can. Employers have an absolute right to maintain a drug-free workplace and do not have to allow or tolerate drug use or 

intoxication in the workplace. Although some states permit the use of marijuana for both medicinal and recreational purposes, most state laws provide exemptions for employers to prohibit the use of marijuana in the workplace. If you maintain a drug-free workplace, then your employees may be subject to discipline and/or termination when working under the influence of marijuana (i.e., on-the-job intoxication). In states where marijuana use has been legalized for medical or recreational purposes, employers may elect to establish intoxication standards for marijuana metabolites, rather than imposing discipline for any presence of the drug. However, this standard must be applied consistently and regularly to all employees.

Marijuana continues to be an illegal drug under federal law (which trumps state laws), and employers are not required to permit on-the-job use of or marijuana intoxication by employees or applicants. You may discipline employees who are legally using marijuana under state law but who are in violation of your workplace policy, because under the law, employees are not protected from being fired for failing a drug test.

Alternatively, you may elect to accommodate your employee’s medical marijuana use, but the Americans with Disabilities Act (ADA) does not require you to reasonably accommodate current unlawful drug use. Employees who claim disability discrimination for their medical marijuana use may attempt to file under the ADA. However, the ADA excludes current illegal drug users from protection; therefore, employers are free to conduct drug tests on employees, subject to certain limitations, to detect the presence of illegal drug use.

Refer to your state’s laws on employer rights and medical marijuana law. Additionally, you may want to update your policies to ensure you are clear about whether you will accommodate marijuana use in the workplace and the subsequent action should an employee be found using marijuana.

Finally, keep in mind that this issue can be complicated. When in doubt, seek legal counsel to ensure compliance.

For more information, contact your Congruity HR Professional at: 844.247.4100.

Business Covered

How Well Is Your Business Covered? 35 Critical HR Processes

How has your company addressed these critical processes?


1.) Identify the human resources (HR) risks, opportunities, and costs within your company

2.) Create job descriptions

3.) Define hiring procedures

4.) Develop forms and tools for various HR actions

5.) Conduct skills testing and background checks

6.) Conduct pre-hire physicals

7.) Create new employee documents

8.) Maintain and retain personnel files

9.) Design and conduct employee onboarding programs

10.) Create a system for employee suggestions

11.) Manage time and attendance

12.) Handle overtime requests and authorizations

13.) Determine overtime exemption status

14.) Develop and implement performance improvement processes

15.) Manage poor performance, behavior issues, and discipline

16.) Create off-boarding processes and termination procedures

17.) Process family and medical leaves and other time off programs

18.) Manage accommodation requests

19.) Handle complaints and work conflicts

20.) Investigate wrongful conduct

21.) Manage home-based workers and telecommuting issues

22.) Manage independent contractors, contingent workers and other “joint employee” arrangements

23.) Manage requests for transfer, demotion, or promotion

24.) Develop and manage total compensation programs

25.) Design and implement recruiting programs

26.) Create employee handbooks

27.) Create and implement strategies for increased employee engagement

28.) Create ethics and work behavior policies

29.) Develop team building programs

30.) Develop and conduct compliance, leadership, and management training

31.) Conduct employee climate surveys and develop action plans based on the feedback

32.) Conduct HR audits and determine risk mitigation plans

33.) Implement strategic HR processes and tools

34.) Manage workers’ compensation administration and reporting requirements

35. Provide on-demand guidance from experienced HR professionals


For assistance with these and other HR processes, contact the professionals at Congruity: (844) 247-4100.


Compliant and efficient human resources policies and procedures are critical to an employers success and longevity. They are the principles and guidelines they follow to achieve business goals and protect themselves from time-consuming and costly lawsuits.

Business Covered
June Congruity

June Congruity Q&A: Discipline | Workers’ Comp.

Question:

We received notification from our workers' compensation claims adjuster that an employee who is on workers' compensation leave has been released to return to work today. This employee has not been in contact with the company since her leave, did not notify us that she was released to return to work, and did not report to work today. Can we apply the same disciplinary actions to her as we do

for other employees in a no call/no show situation, or does she have special protection because she has been under a workers' compensation claim?

Answer:

Although you must make every attempt to bring the employee back to work when released to return to work following a job-related injury or illness, you maintain the right to apply disciplinary action to employees who do not follow company policy. Prior to taking any negative disciplinary action, however, you should review your company’s communications with the employee at the beginning of the leave to ensure that she understood she was required to keep you informed regarding her status. She may have thought that the workers’ compensation carrier would be communicating with you, and she may have been waiting to hear from you regarding her return to work status.

If that's not the case, and you have attempted to contact her via phone and email and have heard nothing back from her, then check her contact information and send a letter to the employee’s home address. The letter should state that you have been notified of her release to return to work and she will need to either return to work or contact you with a valid medical reason for extending her leave to avoid disciplinary action. Send this letter via certified mail with signature required so you have confirmation that the correspondence has been received. The letter should clarify your company’s policy regarding contacting her supervisor when she will not be reporting to work and the potential repercussions for not following the policy.

Continue to work with the claims adjustor and the employee to bring the employee back to work. If you have reached the point of considering terminating her employment, consult with legal counsel to mitigate the legal risks of terminating an employee while on medical leave under the Americans with Disabilities Act and your state's workers’ compensation laws; or contact the professionals at Congruity HR - 844.247.4100.

Are we required handbook

5 Mistakes to Avoid In Employee Handbooks

01. It's too long, inconsistent, or redundant.

Like with your house, when you live with an employee handbook for a while, you collect things and it gets cluttered. Your handbook gets longer and runs the risk of having internal inconsistencies. Once or twice a year, it’s a good idea to give it a

thorough review to remove inconsistent or redundant policies, plus make it shorter and more readable. If you want people to follow the rules, it’s important to have them be clear and accessible.

02. It reads more like an operations manual.

An overly-detailed handbook becomes too much of a procedures manual. For example, it’s important to state that complaints of harassment will be responded to with a prompt and thorough investigation. But the policy should avoid giving too much detail, such as the number of days to expect each step of the investigation to take, so that the employer has flexibility with addressing

03. It sounds too overbearing or paternalistic.

Some handbooks include policies that sound more intrusive than they really are. Carefully tailored language can help avoid a perception of the employer being overbearing. For example, a financial services company had a policy that required employees to handle their finances in a responsible manner. However, the policy was truly only concerned with financial accounts they had through the employer and required further explanation to make it clear the employer wasn’t concerned with what the employees were doing personally

04. It's missing information that affects enforcement.

Another mistake is including language that, while acceptable, isn’t the best training tool for supervisors because it omits certain nuances. For example, an attendance policy may state a specific number of absences that are unacceptable during a certain timeframe. If the policy fails to state that absences covered by FMLA or local sick leave rules don’t count against employees, you can end up having a well-meaning supervisor discipline an employee for absences that should have been allowed.

05. It's lacks clear direction on where employees can go for help.

Employers often miss an opportunity to specify who their “first responders” are. These are the company representatives who will receive reports of anything from alleged misconduct to medical leave. Employers should select these people appropriately and train them about their role. The handbook will have a longer shelf life if you mention the reporting person by title and not name. Be sure the titles used match the titles that actually exist in your organization.

Handbooks are just one of many resources available via Congruity's team of professionals. Contact us today to learn how your company can mitigate risks in the workplace by engaging a PEO at:  844.247.4100.

IRS Restores

IRS Restores 2018 HSA Family Limit to $6,900

Yesterday, the Internal Revenue Service (IRS) announced that the 2018 annual contribution limit to Health Savings Accounts (HSAs) for persons with family coverage under a qualifying High Deductible Health Plan (HDHP) is restored to $6,900. The single-coverage limit of $3,450 is not affected.

This is the final word on what has been an unusual back-and-forth saga. The 2018 family limit of $6,900 had been announced in May 2017. Following passage of the Tax

Cuts and Jobs Act in December 2017, however, the IRS was required to modify the methodology used in determining annual inflation-adjusted benefit limits. On March 5, 2018, the IRS announced the 2018 family limit was reduced by $50, retroactively, from $6,900 to $6,850. Since the 2018 tax year was already in progress, this small change was going to require HSA trustees and recordkeepers to implement not-so-small fixes to their systems. The IRS has listened to appeals from the industry, and now is providing relief by reinstating the original 2018 family limit of $6,900.

Employers that offer HSAs to their workers will receive information from their HSA administrator or trustee regarding any updates needed in their payroll files, systems, and employee communications. Note that some administrators had held off making changes after the IRS announcement in March, with the hopes that the IRS would change its position and restore the original limit. So employers will need to consider their specific case with their administrator to determine what steps are needed now.

HSA Summary
An HSA is a tax-exempt savings account employees can use to pay for qualified health expenses. To be eligible to contribute to an HSA, an employee:

  • Must be covered by a qualified high deductible health plan (HDHP);
  • Must not have any disqualifying health coverage (called “impermissible non-HDHP coverage”);
  • Must not be enrolled in Medicare; and
  • May not be claimed as a dependent on someone else’s tax return.

HSA 2018 Limits
Limits apply to HSAs based on whether an individual has self-only or family coverage under the qualifying HDHP.
2018 HSA contribution limit: 

  • Single: $3,450
  • Family: $6,900
  • Catch-up contributions for those age 55 and older remains at $1,000

2018 HDHP minimum deductible (not applicable to preventive services):

  • Single: $1,350
  • Family: $2,700
  • Single: $6,650
  • Family: $13,300*

*If the HDHP is a nongrandfathered plan, a per-person limit of $7,350 also will apply due to the ACA’s cost-sharing provision for essential health benefits.

April Congruit2

April Congruity Q&A: Employee Assaulted By Coworker

Question:

While working, an employee assaulted his coworkin in our California workplace. May the injured employee pursue a workers' compensation claim?

Answer:

Yes. An employee who is assaulted at work by a coworker may elect to file a workers’ compensation claim. However, he or she may also file an internal complaint, report the assault to the police, or pursue a civil lawsuit. Whether the workers’ compensation claim (or any other claim) will be successful depends upon the facts. For example, was the injured employee the initial physical aggressor? According to California Law, at Cal. Labor Code § 3600(a)(7), employers are not liable under the state’s workers’ compensation law for an injury that arises out of an altercation in which the injured employee is the initial physical aggressor.

Regardless, after an injury occurred in the workplace, California employers must: 

  • Provide a workers' compensation claim form to the claimant within one working day after a work-related injury or illness is reported.
  • Return a completed copy of the claim form to the claimant within one working day of receipt.
  • Forward the claim form, along with the employer's report of occupational injury or illness, to the claims administrator within one working day of receipt.
  • Within one day of receiving the claim, authorize up to $10,000 in appropriate medical treatment.
  • Provide transitional work (light duty) whenever appropriate.
  • Give notice of workers’ compensation eligibility within one working day of the crime (assault) that happened at work.

It is not for the employer to determine whether the injury will be covered under its workers’ compensation insurance. Rather, the claims administrator will determine whether the injury is covered.

Another issue worth mentioning is that California employers are required to abide by a duty of care in the workplace. According to Cal. Labor Code § 6401, “[e]very employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” Violations of this duty incur significant monetary damages.

NEw Guidence

New Guidance on Tipped Wages

The 2,232-page budget spending bill that was signed by President Trump on March 23, 2018, included an amendment to the Fair Labor Standards Act (FLSA) prohibiting employers, managers, or supervisors from collecting or retaining tips made by employees, regardless of whether the employer takes a tip credit.

This law essentially blocked the U.S. Department of Labor’s 2017 proposed rule which would have allowed tip sharing between employees who directly earn them with “back of the house” employees who “[c]ontribute to the overall customer experience,” but do not traditionally receive direct tips, such as cooks and dishwashers.

The next step with the DOL’s proposed rule could be that the agency pulls it or conforms the rulemaking to the spending bill. However, experts are concerned that the bill did not go far enough to provide clear and concise definitions. For example, in the restaurant industry employees can wear many hats. So what happens when a food server is the shift lead? Is a shift lead a manager or supervisor because they are granted authority, be it minimal authority, over other food servers? Employers will be looking to the DOL to provide more specifics.

For the time being, the FLSA standard continues, “[a] valid tip pool may not include employees who do not customarily and regularly received tips, such as dishwashers, cooks, chefs, and janitors.”

March Congruity

March Congruity Q&A: Final Paycheck After Theft.

Question: 

We had an employee walk off the job after admitting that she was stealing money and property from the workplace. She has not returned to pick up her last paycheck. What is our obligation regarding her last paycheck?

Answer:

Regardless of the theft, you cannot withhold pay from a current or terminated employee. You are required to mail her final pay to her last known address. If the check is not processed or is returned, then mail the unclaimed wages along with an explanation to the nearest labor commissioner office or governmental agency office that handles such issues in your state. Importantly, document in detail

all your actions and efforts along with the employee’s reactions or lack thereof.

If you have not already done so, a best practice would be to provide notice to the employee documenting the reason for her termination (the admission of her act of theft from the workplace and that she has voluntarily terminated her employment as a result of the theft). However, you should also inform her that the company must ensure final pay is provided and that the recovery of any money or property she stole will be pursued through the proper legal channels.

Of note, employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment. If the regular payday for the last pay period your employee worked has passed and she still has not been paid or has not collected her wages, then you may also contact the Department of Labor’s Wage and Hour Division or the state labor department.

Best Practice

Best Practices to Ensure Sexual Harassment Law Compliance and a Safe Work Environment

The volume of public allegations of sexual harassment and sexual assault, fueled by high-profile women honored as Time magazine’s 2017 Person of the Year—The Silence Breakers—and individual social media posts (#MeToo), continues to ripple through businesses, our government and our society. The impact of these revelations has prompted forced

resignations, public firings, legal action and other disciplinary measures impacting powerful business executives, politicians, and others.

While the high-profile cases relate to Washington and Hollywood, the issues are not new. But they are becoming more public, as individuals come forward to report abuse in all industries. In fact, an Equal Employment Opportunity Commission (EEOC) report spanning 10 years (2005–2015) noted that the greatest number of harassment complaints (14%) came from hospitality and food service, with retail at 13%, manufacturing at 12%, healthcare at 11%, and other industries, including entertainment, in the single-digit range. The heightened awareness is causing many employers and risk managers to review employment practices supporting the company’s culture to ensure a respectful and safe workplace.

This review extends to how companies manage training, improper workplace behavior, employment contracts and even potential employment disputes that impact their culture and employment practices liability insurance. For example, it is common for employers to have employees sign agreements stating any employment dispute will be settled through binding arbitration. That practice, as it relates to sexual harassment and sex discrimination disputes, may change. In December 2017, a bipartisan bill, the Ending Forced Arbitration of Sexual Harassment Act, was introduced in the Senate. If it becomes law, it will be illegal for employers to enforce arbitration agreements for these claims, allowing these cases to go to court. Morality clauses are being reviewed and strengthened to include sexual harassment in executive employment agreements.

To help protect your company from being the next headline, focus on strengthening your company culture, harassment prevention and swift resolution of complaints.

What constitutes sexual harassment?

Often there is an incomplete understanding of what constitutes sexual harassment. The scandals reported in the news over the last few months are causing some employees to rethink their office behaviors. Does a sexually-laced joke shared in a crowded breakroom rise to the level of harassment? How about giving a coworker a friendly hug? Or telling a coworker that her outfit looks nice? Or asking a coworker to dinner to discuss his role in a new project?

Let’s start with an understanding of the basic forms of sexual harassment -

Sexual harassment is generally divided into two categories. The first is unwelcomed sexual conduct that is either an explicit or implicit term or condition of employment, such as offering an employee a promotion or pay increase for agreeing to sexual demands or terminating an employee who refuses a sexual advance. This is known as quid pro quo (this for that) sexual harassment. For example, in the high-profile case last fall involving Harvey Weinstein, Weinstein was accused of textbook quid pro quo sexual harassment by requesting sexual acts or favors from actresses and others in the entertainment industry in exchange for favorable treatment or roles.

The second form of sexual harassment is unwelcomed sexual conduct that unreasonably interferes (on purpose or in effect) with an individual’s work performance or creates an intimidating, hostile, or offensive working environment. This is known as hostile or offensive work environment sexual harassment.

Harassing behavior can include sexual advances, requests for sexual favors, other verbal or physical conduct of a sexual nature, or offensive remarks about a person’s appearance. While the recent accusations appear to primarily focus on sexual harassment directed at women, both men and women may be sexually harassed, and harassment can occur between members of the same sex.

Preventive measures your company can take:

The following are best practices your company can implement to ensure compliance with sexual harassment laws and protect your workplace environment.

Update employer policies and procedures. The EEOC recommends that sexual harassment policies and procedures include the following:

  • An unequivocal statement that sexual harassment (or other harassment based on any protected characteristic) will not be tolerated.
  • A clear, simple, and easy-to-understand description of what constitutes harassing behavior or conduct, including examples of the types of behaviors that are considered harassing.
  • A description of the employer’s established reporting system, including all avenues for reporting (for example, reporting to a direct supervisor, to a department head, or to human resources) and who can report incidents of harassment (such as the victim and any employees who observe harassing behavior).
  • A statement that allegations will be investigated promptly and thoroughly through an impartial process and that individuals involved in the investigation (victim, witnesses, and/or the target of the complaint) as well as information gathered during the investigation will be kept confidential by the investigator(s) to the extent possible.
  • Assurances that the employer will take immediate and proportionate corrective action if the investigation reveals sexual harassment has occurred.
  • A statement that any individual who reports an incident of sexual harassment, either as a target or a witness, will be protected against retaliation from coworkers and supervisors or managers. If the individual does experience retaliation, the coworker, supervisor, or manager who retaliates will be disciplined appropriately.

Make training a priority. Training both management and employees on sexual harassment, bullying behavior and nondiscrimination protects the company during employment disputes and reinforces the company’s zero tolerance for those behaviors. We encourage our clients to involve senior management, and go beyond the typical annual corporate harassment training by training more often and reinforcing positive respectful workplace behaviors that support the company culture. This training should include methods for dealing with harassment, reporting harassment claims, assessing employees for risk factors for harassment, and consequences for failing to address and report harassment.

All training should be specific to your company’s written policies and procedures and should encompass state training requirements or recommendations, if any. While only three states (California, Connecticut and Maine) require harassment training for supervisory personnel in non-governmental companies, other states mandate training for public sector employees and recommend harassment training for all employers.

Encourage harassment incident reporting. Even with solid prevention measures, incidents can happen. Establishing an effective reporting process that makes it easier for individuals to come forward to report issues of harassment allows your company to act and stop wrong behaviors. Make sure that the reporting process is managed and staffed by several representatives who are properly trained, take all reports seriously, and promptly and thoroughly respond to any reports of harassment. The process should give employees options for reporting and allow them to report harassing behavior to a responsible person with whom they feel comfortable and safe.



Follow up on complaints immediately. Having well-trained, neutral, and objective investigators and a timely, well-documented investigation process also is critically important. To the extent possible, the investigation should remain confidential, and involvement should be limited to those individuals needed to conduct a thorough investigation and to gather all the facts. Additionally, your company should implement mechanisms to ensure that individuals who file reports of sexual harassment or provide information during the investigative process are not retaliated against and that individuals alleged to have engaged in harassment are not adversely treated while the investigation is pending.

In conclusion, we encourage our clients to review their risk exposure and work with Congruity's experienced advisors to ensure that their businesses have compliant sexual harassment policies and procedures, training, reporting, and investigative processes. This builds a positive company culture, fosters a safe and productive workplace, and limits the risk of becoming the next headline.