- Can an employer terminate an employee who fails to produce the required documents for an I-9 form within three business days?
- Does paid vacation time count toward the 40 hours for overtime under the Fair Labor Standards Act?
- May an employer require that exempt personnel use vacation time?
- May an employer reduce an exempt person’s hours and salary on a short-term basis? What about on a long-term basis?
- Does a safety bonus have to be included in overtime calculations for the month?
- If the company gives employees gift cards as part of a “spot” bonus, is it a taxable benefit or income?
- What administrative fees may an employer charge for a garnishment or child support order?
- Where do federal, state and local employment posters have to be posted?
- What are the laws on paid and unpaid breaks?
- My firm wants to have a sales presence about 1,000 miles away. Do I have to hire a sales person as an employee who will live and work in the other state (which may create state tax implications – workers comp, unemployment, Medicare, etc.), or can I hire the sales person as an independent contractor? My health insurance does not normally cover people in the other state.
- May an employer make deductions to an employee's salary without jeopardizing the employee's exempt status?
- May an employer take deductions from an employee's “leave bank” for partial day absences?
- Do employers have to pay for safety shoes?
- What is the average turnover rate in the printing industry?
- Does the company have to reverify employment authorization on I-9 Forms for aliens?
- Can an employer terminate an employee who fails to produce the required documents for an I-9 form within three business days?
- May an employer reduce an exempt person’s hours and salary on a short-term basis? What about on a long-term basis?
- If the company gives employees gift cards as part of a “spot” bonus, is it a taxable benefit or income?
- My firm wants to have a sales presence about 1,000 miles away. Do I have to hire a sales person as an employee who will live and work in the other state (which may create state tax implications – workers comp, unemployment, Medicare, etc.), or can I hire the sales person as an independent contractor? My health insurance does not normally cover people in the other state.
- May an employer make deductions to an employee's salary without jeopardizing the employee's exempt status?
- 10.7% for production employees (6.9% median)
- 6.5% for management (0% median)
- 14.8% for administrative employees (10% median)
- 9.8% for sales employees (6.7% median).
Yes. An employer can terminate an employee who fails to produce the required document or documents, or a receipt for a document, within three business days of the date employment begins. However, an employer must apply these practices uniformly to all employees. If an employee has presented a receipt for a document, he or she must produce the actual document within 90 days of the date employment begins.
Under the federal FLSA, an employer must pay a covered employee overtime pay at the rate of one and one-half times the employee’s regular rate for hours worked in excess of 40 hours during any workweek. Employers do not have to count vacation pay, holiday pay, PTO pay or sick pay as “hours worked” towards the 40 hours; however, employers may do so by their own company policy if they want to be more generous than the law.
Back To TopYes. According to a Department of Labor Opinion Letter, “[s]ince employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account . . . , whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary.” See FLSA2009-2, www.dol.gov/esa/whd/opinion/FLSA/2009/2009_01_14_02_FLSA.htm Further, (“[E]mployers, without affecting their employees’ exempt status, may take deductions from accrued leave accounts.”). Therefore, it is our opinion that the employer may require exempt employees to use accrued vacation time for any absence, including one resulting from a plant shutdown, without affecting their exempt status, provided that employees receive a payment in an amount equal to their guaranteed salary. “[A]n exempt employee who has no accrued [vacation] benefits . . . or has a negative balance . . . still must receive the employee’s guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.” See FLSA2005-41. www.dol.gov/esa/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.pdf
Back To TopShort-Term: No. According to the Department of Labor, a ‘“salary deductions due to a reduction of hours worked for short-term business needs do not comply with § 541.602(a) because they result from “the operating requirements of the business.” 29 C.F.R. § 541.602(a). Thus, “[i]f the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” Id . Deductions from the fixed salary based on short-term business needs are different from a reduction in salary corresponding to a reduction in hours in the normal scheduled work week, which is permissible if it is a bona fide reduction not designed to circumvent the salary basis requirement, and does not bring the salary below the applicable minimum salary.’ See FSA 2009-14, http://www.dol.gov/esa/whd/opinion/FLSA/2009/2009_01_15_14_FLSA.htm
Long-Term: Yes. According to the Department of Labor, a reduction in the workweek on an exempt from (say from 40 hours to 32) “with a commensurate reduction in pay… will not defeat an otherwise valid exemption.” DOL Wage/Hour Opinion Letter, March 4, 1997, “Can employer reduce exempt employee's work hours and salary?”Yes, if the bonus is nondiscretionary, overtime for the time period must be recalculated. According to a January 2009 Department of Labor Opinion Letter, “When the amount of the bonus can be ascertained, it must be apportioned back over the workweeks of the period during which it may be said to have been earned. The employee must then receive an additional amount of compensation for each workweek that he worked overtime during the period equal to one-half of the hourly rate of pay allocable to the bonus for that week multiplied by the number of statutory overtime hours worked during the week.” See FLSA2009-21, www.dol.gov/esa/whd/opinion/FLSA/2009/2009_01_16_21_FLSA.htm
Yes, according to IRS, gift cards, “no matter how little, are never excludable as a de minimis benefit, except for occasional meal money or transportation fare,” thus they are taxable benefits to the employee. See IRS’s Publication 15-B, under De Minimis (Minimal) Benefits, www.irs.gov/publications/p15b/ar02.html#en_US_publink1000101773
Back To TopIt depends on your state. ADP has published a great guide on maximum fees allowed by states. https://www.adp.com/pdf/03-172-058.pdf
Back To TopMost federal, state and local laws require that required employment posters be displayed in areas that employees and applicants can readily see them. Depending on your facility’s layout this may require two areas, such as a break room (for employees) and a waiting area or interview room where applicants normally reside. Note that some smaller employers are not covered under certain laws, such as the Family and Medical Leave Act. For more information see State Employment Posters.
Back To TopYou must look at both federal and state law for the answer.
For federal law, the U.S. Department of Labor’s web site says:
Federal law does not require lunch or coffee breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that would be included in the sum of hours worked during the work week and considered in determining if overtime was worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished.
Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, are not work time and are not compensable.
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945))
For state laws on meal breaks see http://www.dol.gov/esa/whd/state/meal.htm
You can do both. However, if you hire the sales person as an employee on your payroll and they live and work in the other state, there will be state tax implications that you’ll have to setup and run. If your firm has not done this before, you should seek out advice and determine what is involved before making a hire. An alternative is to use an employment agency in the state in question and create an “employee leasing” arrangement. The leasing firm will pay the taxes and often will offer health and retirement plans to the sales person in their home state. Your firm would pay the salary/commission, taxes, benefits, and an administrative fee to the employment agency.
If you use the independent contractor route, you should have an agreement in place and know the federal and state rules regarding independent contractors. Federal and state governments like to challenge the independent contractor status (typically after they receive a complaint) in order to collect tax revenue. For more information on the subject, sample agreements, and state-by-state law review see our article on Determining Independent Contractor Status.Deductions from a guaranteed salary are allowed only in limited circumstances.
Deductions from pay are permissible: when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability, or is absent for one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. § 541.602(b).Yes. Employers may take partial day deductions from an employee's leave bank, even if the deduction results in a negative leave balance; however, an employer may not “dock” an exempt employee's salary for a partial day absence.
Under the final federal section 541 overtime rules, employers may take deductions from employees' leave accounts for partial day absences, the same as under the old federal regulations. The preamble specifically states that "employers, without affecting their employees' exempt status, may take deductions from accrued leave accounts...." 69 Fed. Reg. at 22178. The preamble also cites approvingly to a number of Department of Labor, Wage and Hour Division opinion letters allowing deductions from accrued leave accounts. Additional opinion letters, dated December 4, 1998, May 27, 1999, and February 16, 2001, similarly provide that employers may reduce the amount of accrued paid leave in an employee's Paid Time Off plan, even if the employee is absent only for a partial day. The employer may reduce the leave so that the employee has a negative leave balance. However, the employee must receive the full guaranteed salary, even if there is no leave in the account or there is a negative balance, if the employee has only a partial day absence.In November 2007, the Occupational Safety and Health Administration (OSHA) issued a final regulation (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=20094) regarding payment of Personal Protective Equipment, which mostly takes effect in May 2008. The final rule states that employers must pay for most all Personal Protective Equipment that employees are required to use on the job, but there are a few exceptions, such as for "ordinary safety-toed footwear, ordinary prescription safety eyewear, logging boots, and ordinary clothing and weather-related gear." With regards to steel-toe shoes or boots, 1915.152 (f) says: "(2) The employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site. (emphasis added) (3) When the employer provides metatarsal guards and allows the employee, at his or her request, to use shoes or boots with built-in metatarsal protection, the employer is not required to reimburse the employee for the shoes or boots."
Back To TopAccording to Printing Industries of America’s Economics Department, in 2008 average employee turnover in the printing industry was:
Note: these statistics do not represent turnover after the credit and equity market downturn in the last few months of 2008.
It depends on which document the employee initially uses to verify employment authorization and identity. If the employee checks the third box in Section 1 of the I-9 form ("alien authorized to work until..."), indicating that he/she only has temporary work authorization, the employee must list the expiration date in Section 1 next to that third box. That's a deadline by which the employer must re-verify continued work authorization, if the employer wishes to continue the employment beyond that deadline. If the employee presented an "Employment Authorization Card" for I-9 purposes as a List A document, that card also has an expiration date (usually one or two years, sometimes a little longer), which means that the employment authorization will end on that date. This needs to be re-verified by the deadline also, if the employer wishes to continue the employment beyond that date. If the employer had sponsored the employee for an employment visa (e.g. H-1B visa, or L-1 visa, or TN visa, etc.), those visas also expire on a given day and need to be re-verified (usually, the employer requests an extension of the visa before the expiration date).
Green cards, on the other hand, which are called Permanent Resident Cards (the new gold-looking ones) or Resident Alien Cards (the previous pink & blue ones) or Alien Registration Receipt Cards (the very old white ones) DO NOT have to be re-verified, even though they may have an expiration date. These cards are evidence that the individual is a permanent resident in the U.S., who has permanent work authorization (just like US citizens). The only caveat is that when an employee is first hired and completes an I-9 form, he/she cannot present such a green card as a List A document, if at that time the green card is already expired (employer cannot accept an expired green card for I-9 purposes). (Source: Bernhard W. Mueller, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)