Question: Human Resources is responsible to assure that all associates are legal residents. We recently become aware that a few of our long-time employees who were hired prior to using E-verify are not legal residents of the US.
What are our legal obligations regarding their employment? Do we need to terminate them or are we allowed to continue employing them?
Answer: If the employer at any time during an employee's employment discovers that an employee is not authorized to work legally in the United States, employment must be terminated immediately. The employer can face significant liability if it knowingly continues to employ a worker who lacks legal authorization to work in this country, and in this regard we do not advise that the employer merely "take the employee off the schedule," rather, the employment relationship should be terminated. The employer must pay the employee all wages due though, and we recommend that you consult with an accountant or tax specialist for guidance in properly reporting the final wages to the IRS and state or local revenue authorities in view of the fact that the social security number is not assigned to the employee in question.
If the subject individual later seeks to become reemployed with appropriate and valid documentation evidencing his authorization to work in the US, it is up to the employer to determine whether it wishes to rehire any individual who previously obtained employment fraudulently and under false pretenses, if that was the case with any of the employees you mention.
HR Knowledge is a provider of integrated HR, payroll and benefits services. Our offices are located in the Boston, MA metro area and we service companies throughout the United States.
Question: Is it possible to have an exempt employee who is paid on an hourly basis?
As a human resources department, we sometimes get unusual requests for compensation. We have an employee who was working full-time, 40 hours a week, as an exempt employee (falls under the learned professional exemption). He is now going back to grad school and wants to work part-time during his school breaks (summer and winter).When he does so, he will be doing the same duties and activities as before. Would it be possible to change him to an hourly rate since his work schedule will be sporadic? If we change him to hourly, does this also mean that he goes from exempt to non-exempt status, meaning he will now be eligible for overtime?
Response: To qualify for the professional exemption, an employee must not only meet the duties test associated with that exemption but must also be paid on a salary basis. Payment on an hourly basis renders any employee ineligible for this exemption. If the subject employee goes to part-time status (also incompatible with exemption status) while he attends school and is paid on an hourly basis, he will not qualify for exemption status. The employer should reclassify him as non-exempt and in this regard, must ensure that minimum wage and overtime obligations are satisfied (although it is unlikely he would work more than 40 hours per week as a part-time employee). As a non-exempt employee, the employee must keep accurate records of hours worked too. We would encourage you to consider revising his job title; indeed, while job title is not dispositive of exemption status, having exempt and non-exempt employees (or even the same employee) carry the same job title can create confusion and jeopardize the exemption (even if it was proper, previously). For more information on exemption criteria, please see the Department Of Labor Website.
HR Knowledge is a provider of integrated HR, payroll and benefits services. Our offices are located in the Boston, MA metro area and we service companies throughout the United States.
Terminating an employee is one of the least favorite things most managers or human relations professionals must do. To avoid wrongful termination suits, there are some best practices to follow when firing someone.
- Develop a procedure. Having a procedure takes the emotion out of what can be a difficult situation. It also helps to assure that you cover any potential legal issues that could arise.
- Have procedure reviewed by attorney or human resources consultant. Your counsel should advise whether your procedure meets all state or federal regulations.
- Offer warnings that termination will occur. If the employee is not meeting the expectations of the position, be clear and communicate what actions may be taken. Create a track record of documentation that can help prove the situation if it's questioned.
- Have a written procedure manual. This should be one of the procedures in the manual, and the manual should cover other eventualities that could potentially be fireable offenses. Activities like showing up late, missing deadlines, poor attitude, abuse of company equipment are just a few of the procedures and best practices for human resources.
- Avoid confrontation by having a plan. Know when you will handle the termination and be prepared with what you want to say. Be quick and be clean with the discussion. This is not a time to rehash, but to sever the relationship.
- Have the final check ready. Also have a checklist of any company property that must be returned as well as any passwords that you will need to change. Also, have a list of any keys or fobs that the terminated employee may have in possession.
- Be clear about the reason for termination. If you've documented the issues leading up to the termination and have issued a warning, there should be no mixed messages about why the termination is taking place.
Remember that your goal is to avoid wrongful termination actions and the best way to do this is by developing a procedure that will protect you and your company. By following the procedure, you minimize risk of litigation and develop proper defenses if suit is filed.
Sometimes it's helpful to have a third party, or outsource human resource company handle the termination. Even having a third party sit in the room to be a witness may be a good idea for a contentious situation.
What are you biggest concerns with terminating an employee? Do you have a written and documented termination procedure in place?
HR Knowledge is a provider of integrated HR, payroll and benefits services. Our offices are located in the Boston, MA metro area and we service companies throughout the United States.
HR Outsourcing Benefits Can Strategically Make A Difference
There are many companies that are looking at reducing their expenses and improving their efficiency to remain competitive. One way to evolve into a leaner management is to consider moving expense areas that are not the core of the business. For example, managing human resources is necessary, but typically not the core business offering. HR outsourcing has many benefits, including reducing employee-related expenses and minimizing employment risk.
Especially in a competitive economic environment, the opportunity to look for ways to assure best practices for human resources while reducing overhead expense can make a company strategically have the advantage.
Reduce Employment Expenses And Employment Risk While Having Best In Class Services
The cost of labor and employment expense amounts to a large operating expense for most businesses. The expenses of managing and being in compliance with payroll and tax overhead is only part of the operating expenses. Health insurance premiums, workers’ compensation insurance, recruiting fees, payroll processing, and human resources legal fees all must be managed as well.
Human Resources Outsourcing is growing as a popular option for companies to manage their hr. the benefits of outsourcing human resources are numerous, particularly for charter schools, startup ventures and for mid sized businesses.
The way a human resources company can reduce costs is by offering a team of human resource professionals who understand human resource best practices and who act as your human resource department handing employment concerns.
Some of the benefits of outsourcing HR include savings in Worker’s Compensation insurance premiums, reduced cost of group benefits including health insurance costs, reduce expense for employment practices liability insurance, reduced employee litigation and consequent legal fees. Some of the benefits of outsourced human resources also includes improvement to employee morale, greater job satisfaction, better match between worker skills and position, and improved HR infrastructure and systems.
Minimized Employment Risk Is Huge In A Litigious Economic Environment
During difficult economic periods there are increased risk of employment related lawsuits. Knowledge of changes to complex HR laws may be difficult as an employer to monitor and stay on top of. If you outsource to an HR Outsourcing firm you have the benefit of HR experts.
With so many changes on the State level and Federal level to employment laws, there is a greater need to be aware of changes to Human Resource and labor related legislation.
A Human Resources company should be able to provide:
- Assures updated policy manual is in place
- Updates forms, postings and required HR documentation
- Assures compliance for payroll regulations
- Trains managers regarding appropriate termination procedures
- Audits and assures compliance for employment files and records
- Implements OSHA compliant safety plans
- Handles employee complaints or grievances
- Audits human resources practices and policies on an ongoing basis
What are your concerns with your HR policies. Do you feel your organization does a great job staying on top of Human Resources initiatives and legislative changes? What resources do you use to assure compliance.
HR Knowledge is a provider of integrated HR, payroll and benefits services. Our offices are located in the Boston, MA metro area and we service companies throughout the United States.