Necessary Notifications Before, During, and After the Employment Relationship

Necessary Notifications Before, During, and After The Employment Relationship
January 20, 2021 / 56:37:00

Emmet Ore

Hello, everyone, thanks for joining us today. Welcome to part three of our January webinar series: Hiring, Firing and Inspiring–HR tools for Guiding Performance. My name is Emmett. I’m a marketing specialist over here at Vensure and I’ll be your host for the next hour. Today, our panelists will be talking about necessary notifications throughout the employment lifecycle. As always, there’s going to be a Q&A session at the end. We’ll do our best to answer all the questions you have, but if we don’t get to them, we’ll respond to those individually. This webinar is brought to you, as always, by VensureHR. Vensure is the leader of 20 plus PEO partners with clients in all 50 states.

Today’s agenda includes notifications before hiring your first employee, notifications before the employment relationship, notifications during the employment relationship, after the employment relationship, and rules for storing and retaining documents. And, like I mentioned earlier, we’ll have a Q&A session at the end. Today’s panelists are as always, we
have Robin Paggi joining us. She’s a seasoned human resources practitioner, specialized in training on topics such as harassment prevention, communication, team building, and supervisory skills. And also joining us today is John McFarland, the Senior VP of Client Development at Vensure. He has 13 years in the PEO industry, 20 plus years of experience in HR and leadership, and is a SHRM-CP certified. And with that, I’ll hand it over to Robin and John.

Robin Paggi

Thanks, Emmet. Our last two webinars have been about the interviewing and onboarding processes, and if you were not able to tune in again, we do have them all recorded on the Vensure website. Once you have new hires onboarded, it’s important to inform them of their rights. And that’s a lot of what the notifications are about and also to document much of the employment relationship. So today’s webinar is about how to do those things. And the topic might not seem very exciting, but it really is an important one. So, John is going to get us started.

John McFarland

Great, thank you so much, Robin. So to start off with before hiring your first employee, this can apply to either a brand new business, or an existing business who’s looking to expand into another state; or perhaps hire someone who works in another state or with the mobility during the pandemic, allow an existing employee to move to another state while still retaining them. So first off, you’d want to register to do business in the particular state in which that either business is domiciled in or where that employee is going to be working in. Each state’s a little bit different. But typically you need to obtain a federal ID number (if you don’t already have one that’s the FEIN,) register the business with the particular state. And that’s typically either the Secretary of State or Department of State. Register the business with the county, if applicable, obtain an unemployment ID number, obtain a business license, obtain any additional tax IDs or licenses as required by the specific state, county or city. Sometimes that could be sales tax, a general business tax, et cetera. Obtain an unemployment ID number is very important. You want to research the particular state and how to obtain that particular ID for that state. For example, in Texas, it’s under the Texas Workforce Commission, whereas in Florida it’s under the Department of Revenue. You want to know that the ability to obtain a number may sometimes depend on the amount of wages paid first, whereby you may need to actually pay somebody first, sometimes $215. Again, it varies by state based on that state’s particular criteria before they even allow you to apply. And in some states that doesn’t apply at all.

You have to have it in place before you even pay a dollar. You need to obtain workers’ compensation. And all states,
with the exception of Texas…Texas does not require private employers to purchase workers’ comp insurance. But you are still liable for the injuries and it is still advisable to obtain. Typically, there’s two avenues in which to obtain. Typically, it’s the open market is the most common, whereby you may obtain that coverage through any licensed agent or broker that’s appointed to sell this line of insurance. And oftentimes that may be your current agent or broker. And then there’s monopolistic states, whereby that comp coverage can only be obtained through that particular state’s workers’ compensation fund. At present, there are four monopolistic states. There’s Ohio, and that is through the Ohio Bureau of Workers’ Compensation, through form U3. There’s North Dakota, where one would have to apply through the North Dakota Workforce Safety and Insurance. There’s Washington State, where you obtain it by filing for a business license within that state and it goes through Washington State Fund. And then there’s Wyoming, where you’d apply it through the Wyoming Department of Employment, and that’s Wyoming State Fund. The next item is you’ll have to set up a payroll system. And this is extremely important because as an employer, you must retain and remit taxes. There’s really two options: you can either choose to process payroll in-house, utilizing some piece of software such as QuickBooks, or you can outsource it.

And typically that’s the recommendation simply because unless you or someone on your team has this skill set, meaning the skill set of knowing how to properly process payroll, payroll timelines, collection of taxes, et cetera, it’s best to leave that up to an organization that actually does that for a living. Employers are required to withhold and remit tax payments accordingly and tax collection agencies will not hesitate to charge penalties and interest when monies are due and not remitted on time. And with that, I’ll turn it over to Robin.

Robin Paggi

Thank you. Alright, going on to the next slide before the employment relationship, let’s continue. First of all, you’ve got
to have posters now. Employers must display a variety of federal posters telling employees about their rights in the workplace. And that’s the whole thing about posters, you’ve got to post them in a place where all employees can see them so that they are able to read what their rights are. Most employees don’t ever look at the posters. They really should, but such posters federally need to include such things as the Equal Employment Opportunity is the Law poster, Job Safety and Health poster, and Employee Rights and Responsibilities Under the Family and Medical Leave Act. So those are some federal ones. But then states also have a variety of posters on their own. Now one of the things, even though some states’ posters might go further than the federal posters, do you have to post both? For example, John and I are both in California and our state minimum wage is higher than the federal minimum wage. However, California employers still have to post the federal minimum wage, even though the state is higher. So those are things that you need to be aware of. And usually, you can get posters that include all of the postings that you need to have from your Chamber of Commerce. Your state Chamber of Commerce is a good source. Next is applications.

Now, employers aren’t required to have applications, but they’re a really good thing to have. And before you just download one off the Internet, you’ve got to be careful because it can seem innocent enough, but applications contain a number of minefields that you need to be aware of, mostly concerning the protected classes that we discussed in the interviewing webinar. Funny enough, I just read an article that said employers may ask questions on applications about the applicant’s race, color, and any other protected class as long as the employer doesn’t use that information in hiring. Well, I have a rule: don’t ask questions that you don’t need the answer to. Why would you ask somebody what their race is unless you plan to use that information? So, just don’t ask questions that you don’t need the answer to. So, stay away from the protected classes on applications as well as your interviews, as we previously discussed. Here are some other do’s and don’ts regarding applications: don’t ask disability-related or medical questions. Okay, that is protected. But I do want to say you can ask, you should ask, whether an applicant is able to perform the essential job duties with or without a reasonable accommodation.

So, that’s one of the things is that a lot of times you can’t ask this, but there’s a flip side to it that you not only can ask,
but you should ask. So, do include language telling applicants how to request a reasonable accommodation to apply
or participate in the interviewing process. The thing is, is that the Americans with Disabilities Act imposes a duty on employers to provide reasonable accommodations to applicants, not just employees, so that they can participate in the application process, so that you are ensuring equal access to available positions for everyone. Now, don’t ask about graduation dates and the education section because the dates might reveal how old somebody is. The Age Discrimination in Employment Act says employers may not discriminate against applicants or employees because of being 40 or older. And if you ask when somebody graduated from high school, it might reveal how old they are. But the other thing is, don’t even ask when people graduated from college. Again, don’t ask questions that you don’t need the answer to, and you don’t need the answer to that. One thing, it is fine to have minimum education requirements as long as you can demonstrate that applicants really need the education to do the job. So, that’s one of the things I see on a lot of job applications is that you must have a high school diploma or GED in order to qualify for the job. That’s fine as long as somebody actually has to have a high school diploma to be able to perform the job. What is having a high school diploma demonstrate? It’s supposed to demonstrate that you can read and write and do math at the 12th-grade level. And so does the job require all of that? If it doesn’t, then that requirement might be seen as discriminatory.

So, be careful about your minimum educational requirements. Another thing, don’t ask about marital or familial status. In California, marital status is a protected class, but it might not be a protected class in your state. However, asking questions about an applicant’s marital status, the number of kids they have, the ages of the children, any provisions for child care could be construed as discrimination based on sex. And sex is one of the original federal protected classes. So even if marital or familial status is not protected in your state, sex is. So, don’t ask any questions about whether somebody is married or not and whether they have kids or not. Don’t ask about citizenship. Now, you may ask, you should ask, if an applicant is legally qualified to work in the United States, but you don’t have to be a citizen to be legally qualified.

So, don’t ask about citizenship and don’t ask about arrests. Now, some states may ask about convictions on the application and the interview, but some states may not. That is now against the law. So, you need to know what your particular state says about asking about convictions, but you should never ask about arrests because arrests don’t demonstrate that somebody did something wrong. It just demonstrates they were arrested. And also, the EEOC says that that is a discriminatory practice–making employment decisions based upon arrests because minorities disproportionately have more arrests than Caucasians do. And so that’s why, in particular, arrest is no good. Look at the EEOC website for more information about handling convictions. And again, we talked about this in the interviewing process, but that’s one of the things, is that they’ve got a lot of really good information right at your fingertips that tells you what you can ask, what you can use, and all of that. So, be sure to take advantage of that. Do include a nondiscrimination statement. Employers may want to inform applicants that the company is an Equal Opportunity Employer and does not discriminate based upon any of the federal or state-protected classes.

Do include an at-will disclaimer if you are at-will. Employers may want to inform applicants that the application is not intended to, and does not create, an offer of employment or any kind of contract if somebody gets hired. Do put a background check acknowledgment on a separate document and not on the employment application. I’ll talk about this
a little bit more in just a second. And don’t ask for a photograph, though the EEOC says that employers may not ask applicants for photographs. After you hire somebody, you can take their picture or a name badge or something like that. But prior to that, you can’t. Reason is that if you look at somebody’s photograph, you can tell what race they are and maybe what age they are, what sex they are, that type of thing. And you can’t make employment decisions based upon any of those things. So, employment applications are not only one of the company’s first contacts with applicants, they’re also written documents that can later be used as evidence in court cases. So, make sure that you are following the rules if you are going to have applications.

One of the things that you might do along with an application is a voluntary disclosure form. And that’s not listed here,
but I wanted to add it as well. Now, one of the things that larger employers are asked for is how many people of different races and genders applied for jobs with them. And so how do you collect that information if you can’t have it on your application? Well, you have a separate voluntary disclosure form. The applicant does not put their name on it, but they can put their race, their gender, whether their veteran status or not. And it does not go with the application, so don’t staple it to the application. You just put it in a separate pile with all of the other voluntary confidential disclosure forms. And so that way you can collect data that the government sometimes wants from people without being in danger of anybody accusing you of making employment decisions because of that data. All right. Now, job descriptions… also not required, but very useful. So, first of all, in the application process, we talked about this, a good job description tells the applicant what the position would require. And after reading the job description, they might decide that they are not qualified for it and so don’t even bother to apply or take themselves out of the running. That doesn’t happen a lot. Lots of times people just go ahead and apply for jobs they’re not qualified for, but that’s one of the things that it can do. They’re good during the interviewing process, as we discussed. Job descriptions should list the essential duties of the job that applicants and employees must be able to perform in order to be able to perform the job. And during the interviewing process, a lot of times all you need to do is put, “tell me about your experience with,” and then list the essential job duty.

So, for example, an essential job duty for me is to be able to conduct webinars. And so the job interviewing question would be, “tell me about your experience in conducting webinars.” So, they’re really good for the interviewing process. And the onboarding process, as we discussed, is that when you hire somebody and they’re on board and you want to tell them what the job is to make sure that they’re very comfortable in knowing what your expectations are. It helps you to set SMART goals for them so that it puts them on the path to success, which is what onboarding is supposed to do. The interactive process. State and federal laws require reasonable accommodations for qualified individuals with disabilities, as I said, and so the job description can help with the interactive process. It serves as a starting point for what the employer believes to be the essential job duties because they’re listed there. And then the applicant or employee must be able to identify which of the duties he or she cannot perform. Then the employer and the applicant, or the employee, begin to discuss what might be a reasonable accommodation that the employer can make for them that can help them perform the essential job duties. And the other thing, too, is somebody gets hurt or disabled on the job. A job description is good to send to any physician or anyone else who is going to determine whether somebody is physically capable of returning back to work. I’m always really surprised when people don’t have job descriptions and physicians are determining whether people are physically capable of doing a job when they don’t even know what the job is. So, job descriptions are good for that. And then another thing, they can help justify an employee’s exempt or nonexempt status. And so if you don’t know what exempt or nonexempt is, you need to learn those things because it’s very important. You want to classify people correctly as exempt or nonexempt.

Exempt means that employees don’t get overtime, they get paid the same regardless of how many hours they work. And you don’t have to make sure they’re taking those rest periods or meal periods. Nonexempt means they’re not exempt from those things. And so you have to pay them overtime. You have to give them rest periods and meal periods and those types of things. A lot of times employers just want to classify everybody as exempt and that way you don’t have to worry about it. Well, that’s very much against the law. And so you need to know what classifications are, and on the job description, you want to put whether somebody is exempt or nonexempt, and you also want to demonstrate on the job description how they meet those exemptions. So, that’s a whole webinar in itself on how people meet the exemptions and what the exemptions are. But, here’s an example. There’s an executive exemption, and in order to meet the executive exemption, an employee must manage a recognized department or a subdivision of a company and supervise at least two employees. And so that’s one of the requirements in order to meet an executive exemption. And so you would want to have that listed on the job description to meet the administrative exemption.

Job descriptions should state the employer regularly exercises independent judgment and discretion about matters of significance, or something like that. And so, again, you want to have those on the job description to demonstrate that the person does meet those exemptions. Now, under that, the exempt and nonexempt analysis, this is again, something that is not required, but it’s a good thing to do if you want to make people exempt, to actually conduct an analysis on the job description to ensure that they do make the exemption. And I have done this for a number of clients. And how I’ve done it is I just go through the job description and identify all of the duties that make the exemption status. And then I also identify the duties that meet the nonexemption status, because all jobs usually involve nonexempt duties such as filing and data entry, and things like that. And so if a job description lists more exempt duties than nonexempt duties, chances are that person meets the exemption. Not always, but it looks good. So one of the things that’s really important is to make sure the job description accurately reflects the job, because that’s one of the things that the exempt analysis doesn’t mean anything if the person is not actually performing the duties that are on the job description. All right, the background check waiver. There are many types of pre-employment background checks being conducted, such as employment history, education, criminal history, consumer credit reports, motor vehicle records, specific industry mandates such as health care, child care, any kind of credentials or certifications that go along with those, national security, social media, personal references. So just a whole bunch of types of background checks that you can do.

The waiver itself, as I mentioned before, must be a clear and conspicuous disclosure that is in a document that consists solely of the disclosure. So, you don’t want to have it on the application and people don’t really read it and they just sign off it. And then you go on and you do a background check and find out all sorts of things that they did not know you were going to find out. So, that’s really important to have that separate waiver. And then finally, the employment offer letter. And again, not required, but it’s a good idea. And one of the reasons is because it establishes, again, in writing, exactly the type of employment that you are offering. And then the person signs the letter agreeing that they understand. So frequently offer letters include the job title and the position, the name and position of the person’s supervisor going into the job, whether it’s full-time or part-time, exempt or nonexempt, what the duties are, what the work schedule is, what the base pay bonuses commissions are, any benefits, the starting date, where somebody’s supposed to start (the location), who they’re supposed to check in with, the at-will statement, nondisclosure agreement, if that’s applicable, and acknowledgment of offer, and confirmation of acceptance. So, you want to put a date on there that says you need to tell us you’re accepting the job by this date. So one of the things, even if you don’t use offer letters, in some states like California, employers have to give the employees a wage notice that says exactly how much money they’re supposed to be making.

And so check to see if your state does require that. But even if it’s not a requirement, this is a good idea to have all of those things in writing so that the employee knows exactly what they’re getting themselves into and so there are no disagreements afterward. And before I turn it back over to John, I want to give you my own little example, as I like to do. At a previous job in a land far, far away, I was given an offer of employment and commissions went along with it, and what I was supposed to do is, I was eligible for twenty-five hundred dollars quarterly commission. So when I got to my place of employment, I wanted that twenty-five hundred dollars that first quarter. And so I said to my supervisor, “what do I need to do to earn that commission?” And he said, “Oh well why don’t you do whatever?” And I don’t even remember what he told me to do. But anyway, so I completed it and so I was waiting for that paycheck when that twenty-five hundred dollars was going to be on that paycheck. And I got the paycheck and it said five hundred dollars. And so I went to my supervisor and I said I thought I was supposed to get my bonus and he said, “you did. You got a five hundred dollar bonus.” I said “I was supposed to get twenty-five hundred.” And he said, “Why do you think that?” And I had my offer letter with me and I showed him my offer letter and he said, “Oh.” So that’s one of the reasons that you want to have those things. And as an employee you want to keep those things so that you can remind people what they have agreed to. Alright. Now, back to you, John.

John McFarland

Thank you, Robin. So, during the employment relationship. First off, new hire forms. Typically speaking as, Robin had indicated, applications and/or resumes are not required. That’s definitely an important document, but if you do decide to collect these again, remember, applications must be compliant. As Robin had indicated, they cannot expose any protected classes with respect to race, color, religion, sex, national origin, or sexual orientation. There’s numerous states that have now adopted salary history, indicating that you cannot ask salary history in order to ensure that there’s pay equity. And also numerous states have moved to the Ban the Box, which is as Robin had indicated, you can’t ask for criminal history or criminal background upfront on the application.

When the employee gets hired, typically you collect the new hire packet and that is name, address… the typical information. At this point, you can ask for the date of birth, social, and such because you will be needed in order to process payroll. You’ll need to collect the W-4 form. You’ll need to collect your state equivalent tax withholding form if your state requires it. Some states are Okay with indicating what was on the W-4 for the state withholding, as well. Some states absolutely have to have their form. You have to have an I-9 form fully executed–the employee’s portion, as well as the employer’s portion, and it does have to be executed properly, correct signatures, dates, etc., within the timeframe allotted, as indicated on the form. If you have policy acknowledgments and the most common typically are sexual harassment acknowledge, a policy acknowledgment use of company property. If company property is issued to a new hire, sometimes acknowledgment on how to report an injury.

If you’re in an industry that’s got a lot of safety scrutiny, such as, say, working in an oil field, you’ll want to have these acknowledgments in this new hire packet, as well. Because if an employee were to break policy, that’s your proof that they received notification of that policy because their signature and the date is on that document. If you provide a handbook,
it is advisable that you have a handbook acknowledgment for the same reason. If you have that acknowledgment and a policy or procedure is violated, an employee is separated as a result. You have proof that they received the handbook and as indicated, an acknowledgment that they read it and understood it. And then you have state-specific requirements, as Robin had indicated, there is numerous states that have wage notices or wage theft notices as of mid-2017. There was actually four states and two cities that have an actual template that must be completed. And then there’s 17 states that require employers to notify new hires of their wage information, but they don’t provide a template. You just need to disclose the information. The locations with templates are California, New York, South Carolina, and Washington, D.C. The cities with templates are Seattle, Washington, and St. Petersburg, Florida, and then the states that require the disclosure of the pay but do not have a template, are Alaska, Connecticut, Delaware, Hawaii, Idaho, Illinois, Louisiana, Maryland, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Pennsylvania, Tennessee, Utah, and West Virginia. Another item that’s come about were some states have a requirement as what’s known as a service safe certificate.

There’s nine states that require this: Alaska, Arizona, California, Florida, Illinois, Oregon, Texas, Utah, and Washington. And this is a certificate that’s required for food handlers. And you’ve got to keep in mind that typically folks think, “oh, it’s just restaurants.” It’s anybody who prepares and serves food that could affect the drug and alcohol rehab center, in-home medical, or elder care facilities. Any place where you may have a client that is served food as part of that process, your state may require that those that serve it and prepare it has some sort of service safety certificate. And then reporting of new hires as a requirement in all states. And this is required under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, and essentially what that is, is you’ve got reporting time requirements within a particular state. It does vary anywhere from seven to 20 days as the time frame from the new hire reporting to the state. On average, it’s about 20 days. Many states actually charge a penalty if they are not reported. The new hires are not reported within the time specified, the penalties can range anywhere from $10-$250, but on average, it’s usually right around $25. And what this is used for is to fast-track child support, withholding orders to collect child support, and often may trigger other garnishment orders and prevent the collection of unemployment.

A workers’ compensation benefits that an employee no longer qualifies for because now they’re employed. Then there’s the safety aspect. Safety is extremely important. Safety standards are unique to each employer and the environment in which they operate their business. Twenty-one states, plus the territory of Puerto Rico, have an OSHA-approved state
plan that covers private, as well as state and local government workers. And then there’s six states that have OSHA- approved plans for state and local government workers only in general. These plans are more stricter than the federal OSHA standards and must be followed as indicated by the respective state agency. The typical list of OSHA–federal OSHA–standards could be control of hazardous energy, which is a lockout tag-out program, which requires the employer to develop procedures to protect employees who service or maintain machines for unexpected start-up or release of stored energy. There’s occupational noise exposure that requires employers to have a program for them. If employees are exposed to noise levels equal to or greater than 85 decibels for an eight-hour time-weighted average, they may be required to have personal protective equipment and if so, the employers are required to conduct certified hazard assessment to determine if hazards present themselves that would require PPE for the eyes, face, head, and extremities. And if so, they must provide the equipment, training the employees and the proper use, get acknowledgment from the employees that they understand is how to use it, and then enforce the use.

There’s hazard communication, which is employees’ right to know. And that requires employers to develop a written hazard communication program that protects employees from hazards related to chemicals used, including how to read the safety data sheets. There’s Process Safety Management, or PSM, which requires employers to have a 14 part PSM program if they utilize toxic, flammable, or explosive chemicals in certain quantities. There is an emergency action plan that requires employers to have an emergency action plan in place to address the proper evacuation procedures in the event
of a fire emergency. If you’re required to have fire extinguishers in your building, employers are required to provide fire extinguishers, must have them mounted and properly identified so employees can find them. And if the employer expects the employees to actually use them in the event of a fire, the employer must create an educational program, provide training, document that training, and maintain that documentation for the duration of the employee’s employment. There’s permit-required confined spaces and employers must identify any and all confined spaces that employees or outside contractors must enter and have a written policy in place, and only allow those who are properly trained to enter these spaces. You’ve got bloodborne pathogens, so if you’re in an industry where this is likely during the course of employment, the employer is required to have a written program in place. And that’s, again, if they have reasonable exposure, and then proper PPE and training for it. Employers are required to have a respiratory protection program if they evaluate the workplace and determine there’s harmful exposure to dust fumes, mist sprays, or vapors.

Electrical safety program. If the employers or employees are expected to work near or on machinery that can’t be locked out or tagged out. Access to employees exposure to medical records, so employers are required to inform employees of their rights to access the employee’s exposure to harmful substances or any medical documents maintained by the employer, including the ability to obtain copies. If you have powered industrial trucks such as forklifts, man lifts, you’re required to have a written program and certification training, including classroom and physical utilization of the equipment for those users. And those users have to be certified at least every three years after an accident or near-miss. Then you’ve got the OSHA 300 Logs. The logs must be maintained by the employer. Any incident that’s recorded on the 300, it needs to have a three-on-one incident report. And then there’s the summary, which is the 300 Log, and that needs to be posted in a conspicuous place where employees can see it from February 1st through April 30th. And then these logs have to be maintained for five years out of the calendar year for which those records pertain to. Then there’s a general duty clause which requires employers to identify recognized hazards likely to cause serious injury or death. And some of the items that may fall into that are ergonomics, heat illness, workplace violence. And then there’s disciplinary records.

While it’s not a requirement to maintain records regarding discipline, it is recommended to do so if an employer claims
the unavoidable employee misconduct offense, and typically within the write up, there needs to be the nature of the violation, the date, the name of the employee who violated the policy, and the name of the supervisor who administered the discipline. And then there’s injury and illness prevention plans. And IIPP is not required by federal OSHA. However, there is 22 states that do require employers to have an IIPP. And typically, the IIPP is a safety program that’s tailored to particular business operations and is designed to prevent workplace injuries, illness, or death, and proactively guiding these employers to identify and fix workplace hazards before an employee actually gets hurt. Then there’s training acknowledgment so could pertain to safety. It could pertain to how to use a piece of equipment, whatever the training may be. Acknowledgment forms. You’ll want to make sure they get signed. You have a sign-in sheet. These are crucial to have the proof that you did this training and this employee has received this information on how to properly use something, or conduct, whatever the case may be, that also supports actions taken by an employer to correct unsafe behavior or potentially unlawful conduct for employees. For example, let’s say somebody receives complaints about inappropriate behavior of an employee and that’s followed up with the assignment of sexual harassment training to that employee to educate the employee and to stop the behavior.

You’ll want those acknowledgments and possibly that sign-in sheet to prove that that was administered. Then you’ve
got benefits information. Typically speaking, usually one thinks of health, dental, vision, but you want to make sure you consolidate all your benefits, your life, your disability, your flex spending account, health savings account, if you offer it. If you have an employee assistance program, what is it? How to access it? Do you provide discounts, movie tickets, local eateries, gym memberships? You’re a forward-thinking employer, maybe you offer a Section 127 tuition assistance, any and all benefits you’ll want to have on this document to show the value that the employees are getting. Qualifying events, you want to educate your team regarding the life events that allow an employee to make changes to qualified plans outside of the open enrollment period. Typically, the employee will need to provide some sort of proof of an event such as a marriage certificate, birth certificate, etc., and the typical life events that can allow a mid-year plan change as marriage, divorce, the birth of a child, adoption, death, loss of a large group plan. Let’s say your spouse holds the plan and they lose their job. That’s a life event that could cause you to elect to your benefit plans at your employer and add your spouse and children on that. And then those dependents that age out, in other words, they turn 26 years of age and can no longer be covered on a parent’s plan. And then there’s a required tax filings. You’ve got your federal, you got your quarterly 941s, and annual 940s, but the state, your respective state quarterly’s, and if applicable, the annual, and then be aware of any additional state-specific tax requirements.

For example, Nevada has a modified business tax. I actually had a client that was physically visited by the agency
that watches over this and demanded payment and would not leave his building without payment. So they can be
very aggressive when it comes to the payment of taxes. And then after the employment relationship. It’s important to understand final paycheck acknowledgment procedures. At present, there’s 11 states that require employers to provide written notice of separation: Arizona, California, Connecticut, Georgia, Illinois, Louisiana, Massachusetts, Michigan, New Jersey, New York, and Tennessee all require some sort of written notice of separation. Although it may not be required in your state, it’s definitely recommended to provide written notice of separation or request a letter of resignation. And that gets missed a lot. If an employee quits, ask them to provide you something, even if it’s an email, because that can help defend an employer against a lawsuit or possibly help them fight an unemployment claim. Then there’s unemployment information. Where applicable, employers must provide their state’s unemployment information to employees upon termination. Right now, there’s 12 states that require employers to provide their state’s specific disclosure to employees when they’re terminated. Then there’s three states that require employers to provide this information if the employee requests it. Now, be aware of state-specific requirements for final check payments as well, for both voluntary and involuntary, because it’s different. Timing for final checks do vary by state. What you have in one state may not be the same in the next state over. While most of the states indicate the pay is due on the next scheduled pay, and that’s the majority of states, that’s not the case for all. For example, California.

As somebody voluntarily quits, they got to be paid immediately if they provided at least 72 hours prior notice, or if they didn’t, the employer has 72 hours in which to provide that final pay if they’re terminated. So involuntary termination, they have to be paid in full immediately. So, you need to make sure that you’re paying final wages based on your state’s criteria. And then COBRA (Consolidated Omnibus Budget Reconciliation Act.) So under federal law, employers with 20 or more employees are subject to COBRA. However, there are 39 states plus the District of Columbia that require employers with fewer than 20 employees to offer COBRA. So, COBRA allows an employee to continue their benefit coverage upon separation or reduction in hours to where they’re no longer full time. Now, it’s important to note that employees are often caught off guard when they realize how much the premium is because they no longer have the employer’s portion of the coverage. And in many states, an administrative fee is allowed so they may pay 103%, 108% of the total premium. It’s important to educate employees on that. Employers subject to COBRA must notify new enrollees of their COBRA rights within 90 days of enrolling in the plan. And then employers have 30 days to notify their plan if an employee separation occurs or if there’s a reduction in hours below the full-time amount. And then ERISA, which is the Employee Retirement Income Security Act, all private employers are subject to ERISA. ERISA provides protection to employees that are counting on employee benefits as part of their retirement, whether that be 401(k), pension, maybe health was part of the retirement. Whatever the case may be, they have protections.

The most important aspect of this is that it provides protections for participants, including access to plans and information, a grievance and appeals process, and a right to sue for benefits and breaches of fiduciary duty. So really, this is designed to protect the employee and the benefits that they obtain. And then there is the WARN notice, the Worker Adjustment and Retraining Act of 1988. This requires employers with 100 or more employees to notify employees 60 calendar days prior to a plant closing or a mass layoff. If there’s a series of small layoffs over 90 days, this may also trigger a WARN requirement. The act is designed to protect workers, families, communities impacted by plant closures or mass layoffs. And where this came about, as you know, you think of Detroit or somewhere where an entire community is dependent upon a particular factory. And not only does it impact the workers and their families, but it impacts the entire community because all the businesses there, are there to support the workers that work at that plant. And currently, there are 23 states that have a state-specific one, typically referred to as a Mini WARN. Then those laws may vary and they’re typically more stringent than the federal one, and you need to be aware of those. And we have had it come up during this pandemic where it kind of begs the question that did my layoffs due to this pandemic associated with COVID-19 trigger some sort of federal or state WARN? You definitely have to be aware that you may not qualify under the federal law. Your state may have a Mini WARN that you are subject to. And with that, pass it on to Robin.

Robin Paggi

Thank you so much, John. All right. So, of course, there are rules for storing and retaining all of this documentation. And so first, let’s talk about what should be kept in personnel files and what should not. Of course, a lot of the things that we’ve talked about all along this way should be kept in personnel files. But let me just break it down for you. The eight documents that every file should contain, whether it’s paper or electronic, doesn’t matter, basic employee information.
So, John pointed out that you’re going to, of course, collect the employee’s name, address, phone number, emergency contact details, all of those types of things. And that should be, of course, in the file. Now, one of the things I want to
point out as far as the emergency contact information, some states like California, you are not allowed to identify who the emergency contact is. So, frequently we put down who is the contact. That’s my husband, it’s my wife, it’s my mom, it’s whoever. And in some states, they don’t allow gathering of that information because, again, it might reveal marital status or sexual orientation, that type of thing. And I had an employer who was upset about that. And he said, “I want to know who I am talking to when I contact the employee’s emergency contact.” And I said, “You’re contacting the person they told you to contact. Why do you need more information than that?” And so, again, don’t ask questions that you don’t need the answer to. All right. So that’s basic employee information.

The IRS tax withholding forms, W-4, W-9, payroll, and compensation information, including any paycheck or pay card data. And this is, again, one of the reasons that you want all of this to be electronic and as much from an outside vendor when it comes to payroll as you possibly can, so you’re not storing all of this paper stuff in paper files. Contracts or any agreements between the employee and the employer, such as a non-compete agreement. And again, in some states, non-compete agreements are not legal. And so if you’re going to have them, make sure you can legally do it. Any kind of contract, of course, if you’re at-will, you don’t want to have contracts, but if you do have contracts, then they should be in the file. Or any other kind of agreement related to company-provided car or bonuses, that type of thing. Forms related to the employee benefits that John just went through, enrollment forms, beneficiaries, child support garnishments, or any other legal or litigation documents that you might receive, workers’ compensation claims, if any, and termination documents that John just covered. So, those are eight things that need to be included. Here are some documents that are nice to have an employee files, but not critical. The signed offer letter or employment agreement, the receipt or signed acknowledgment of the employee handbook. And I just want to say one thing about the employee handbook, and we talked about this in the onboarding, but it bears repeating when you hand an employee a handbook and tell them to sign a document saying that they have read it: you know they didn’t read it. And we are going to cover employee handbooks next week. So, here’s just a little preview of it.

That handbook should be discussed with employees all-year-long, all the time. So, yes, do have an acknowledgment form, but know that they don’t read it. They don’t know what’s in it. And it’s your job to ensure that they do so. More
on that next week. The job description. Job application, if one was used. Resume if one was provided. Performance evaluations, including awards or citations for excellent performance. Any disciplinary actions, references, or background checks, drug test results, leave of absence. Sick time, some states sick time off. Records are required to be kept. And if they’re not maintained electronically within your payroll system, it’s a good idea to have them in the personnel folder. Now, what should not be kept anything related to worker eligibility, such as I-9 forms, copies of driver’s licenses, or equal employment opportunity records. Now, let me explain that a little bit, such as the I-9. One of the reasons that you want to keep all employees I-9s in a separate folder is if you have anyone from immigration and they want to verify that employees are there legally. And if all of your I-9 are in the personnel records, then they have access to the personnel records. But if you’re I-9 are in one folder, then that’s what they have access to. And so that’s one of the reasons that you want to keep those things separate, is because you might not be the only one who has access to these things based upon their
job description.

And you want to be able to limit their ability to gather information other than what they’re looking for. Of course, you’re
not going to keep any health information, any medical information in the personnel file. And the reason behind that is because you don’t want anyone to make employment decisions about employees based upon medical information. So, one of the things that happens sometimes is that an employee might want to transfer from one department to another and a supervisor, if it’s applicable at your workplace, might be able to view the personnel file of the employee who wants to transfer into her or his department. And if they look through and they see medical information, they might decide that they don’t want that employee to transfer. So, employment decisions cannot be made about medical information. And that’s one of the things I said, is that workers’ comp information, drug test results, that type of thing, you don’t want to have all of the medical information about the workers’ comp in that file, just the basics about dates and and things like that. But you don’t want the actual medical information. You want that in that separate file that is kept not only in a separate file, but in a separate location, and then private data such as bank account, Social Security numbers, immigration documents, all of those things, again, best stored separately. Now, it’s a good idea to have a checklist of all the things that you want to have in the file and staple it to the front of the actual file folder, or it’s all done electronically, which we suggest.

Make sure that you are keeping track of all of the files that you should have and that you do have. Again, you can retain all of these records electronically. I suggest that you do. Having an HRIS system helps employees to make changes on any of the records that they need to make changes on, and they won’t be bothering you all of the time about that. Now, access HR personnel should only have access to it if you don’t have an HR person, just the employer. But here’s one of the things: sometimes people think that employees have access to their file any time they want it, and all they have to do is ask you for their file and you got to produce it right there. That is not the case. So state law, some personnel files revolve mostly around whether an employee has a right to look at their file. And many states have a provision that allows employees to request copies of documents or documents that they have signed, other states that have the potential for an employee to see their personal file by filing a lawsuit. And here’s a couple of specifics that I’ve got for you. In Florida employees may only view information related to exposure to toxic substances. And in Arizona, only payroll records can be viewed. So once again, you want to find out what your state says about it. And you can find that information from the Department of Labor website. And a little bit more about record retention, I wish I could tell you just keep everything for five years and you’re good. But of course, it’s not that easy. There are a variety of requirements for different records. Some have to be retained for two years, some three years, some four years, and some 15 years.

And so instead of going through every single one of them, what you should do, again, contact your state Chamber of Commerce to see what the requirements for record retention are in your state. And then finally disposing of records. You need to make sure they are disposed of properly. Now, the Fair and Accurate Credit Transactions Act says that burning, pulverizing, or shredding of papers containing consumer information or entering into a contract with another party engaged in the business of record destruction is okay, too. But you have to do due diligence on them. Please, do not burn any files. And if you’ve all got them electronically, that’s a really easy way to destroy them. Just push delete. So finally, failure to properly destroy these records, of course, can result in lawsuits. So you want to make sure you do it correctly. Alright. That’s all we’ve got for you. Do you have any questions for us?

Emmet Ore

Alright, thank you so much, Robin. We do have a few questions here. Regarding the posters, what is our requirement with having information to our employees when we are all working from home? Our posters are posted in our lobby area. However, with the pandemic, we’re not going to the office for interviewing or placement.

Robin Paggi

Yeah, it’s perfectly fine to have it all online. And so if you have an Intranet, then you are able to store them on the Intranet and let people know where they are or you’re able to just send them out through email. And so electronic postering is fine.

Emmet Ore

Wonderful. Okay. Are we not able to keep driver’s license in a separate file? Also, should Social Security card or passport copies be kept in a separate file?

John McFarland

So it is not recommended to maintain, but the caveat to this is, is we have actually assisted clients with the Department of Homeland Security audits, and having those documents was actually extremely beneficial because the client was allowed a cure time in order to fix the issues to the I-9. So if you were to keep them, do not keep them with the I-9s, keep them in a completely separate file. And again, the recommendation is, is that you do not keep them. But from experience, we’ve actually seen the benefit of having those. So it’s a it’s a personal decision.

Emmet Ore

Got it. Thank you. Okay, so here’s another one. During my onboarding process, my new hires completed an emergency contact section where we ask for name and relationship. Do I need to remove the relationship part?

Robin Paggi

Again, it depends upon which state you’re in. But once again, don’t ask questions that you don’t need the answer to.

Emmet Ore

Gotcha. Okay, looks like we have time for one more question here. If you receive written confirmation from the employee that they agree with their PTO records, do you need to keep the request or event correspondence?

Robin Paggi

Always a good idea to keep that.

John McFarland

I think, and it’s sometimes it’s cynical, that a happy employee is always happy until they’re not and sometimes you need that documentation to back it up when they’re not.

Emmet Ore

Gotcha. Okay, and here’s one last question. Are employee handbooks a legal requirement?

Robin Paggi

They’re not a legal requirement, but if you’re going to have them, there are some definite dos and don’ts that go along with it and we’re going to cover that next week.

Emmet Ore

Perfect. Okay, I think we’re out of time here. Thank you so much, John and Robin, for presenting today. Thank you, everyone who is here and thanks for joining us. If you registered for this webinar, you should be registered for next week’s webinar as well. So, it’s a series. So, if you register at any point in the last couple of weeks, you will be registered for the rest of them. I hope to see you all there for next week for part four of our January webinar series. Thank you so much.