Mindy Rowland Ccap
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Human Resources for Long Term Care A Human Resources Teleconference Series for Long Term Care Human Resources Personnel Session II: Wage & Hour Issues
February 9, 2008
Human Resources for Long Term Care Session II: Wag & Hour Issues Presenters: Brian R. Purtell Wisconsin Health Care Association & DeWitt Ross & Stevens S.C. (608) 252-9366 [email protected] [email protected] & Mindy Rowland Buenger DeWitt Ross & Stevens S.C. (608) 252-9320 [email protected]
Today’s Session
Overview and Review of the Fair Labor Standard Act (FLSA) On-Call/24 hour coverage Exempt vs. Non-exempt Break/Lunch time requirements Posting expectations Overtime Timekeeping procedures Minimum wage
Overview and Review of the FSLA
Overview, applicability Recent focus on LTC providers Results of DOL LTC review Enforcement Remedies Penalties Risks Focus areas
Overview and Review of the FSLA
C
Overview and Review of the FSLA
DOL Activity in LTC Review Findings
Overview and Review of the FSLA
Enforcement Penalties Remedies Focus areas
Overview and Review of the FSLA
DOL and DWD Resources
Hours Worked: Issues
Suffered or Permitted On-Call Time Meal and Rest Periods Waiting Time Training Time Travel Time Sleep Time
Suffered or Permitted
Wisconsin law: E/ees must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the e/er and pursued necessarily and primarily for the benefit of the e/er’s business” Wis. Admin. Code DWD 272.12(1)
Suffered or Permitted
Federal law: “employ”= “to suffer or permit work” Work not requested but suffered or permitted is work time
Hours Worked: On-call time
On-call time is hours worked when Employee has to stay on the employer’s premises Employee has to stay so close to the employer’s premises that the employee cannot use that time effectively for his or her own purposes
On-call time is not hours worked when • •
Employee is required to carry a pager Employee is required to leave word at home or with the employer where he or she can be reached
Hours Worked: On-call time
Case-by-case determination. Factors include: Length of any required time limits for responding to calls. Geographic restrictions on employee’s movements; Frequency of actual calls during such time; Ability to trade “on-call” responsibilities, and number of employees working on-call; Whether use of pager would ease restrictions on employee
Hours Worked: On-call time
Factors (cont): Whether employee actually engaged in personal activities while on-call Whether agreement existed re: compensation while on-call, and whether employees were aware at time of accepting position; Geographic location of employer; and The effect of requiring compensation for on-call activities both to employer and employee
Hours Worked: Meal and Rest Periods
Meal periods are not hours worked when the employee is relieved of duties for the purpose of eating a meal Rest periods of short duration (normally 5 to 20 minutes) are counted as hours worked and must be paid
Hours Worked: Meal and Rest Periods
LTC Issues: For periods to not be hours worked, staff must be fully relieved from responsibilities. Regular pulling staff from meals/breaks to attend to residents may equal compensable time. Meal periods are not hours worked when the employee is relieved of duties for the purpose of eating a meal
Unauthorized extension of break, contrary to clear policy, need not constitute hours worked.
Hours Worked: Waiting Time
Counted as hours worked when: Employee is unable to use the time effectively for his or her own purposes; and Time is controlled by the employer
Not Counted as hours worked when: Employee is completely relieved from duty; and Time is long enough to enable the employee to use it effectively for his or her own purposes
Hours Worked: Training Time
Time employees spend in meetings, lectures, or training is considered hours worked and must be paid, unless Attendance is outside regular working hours Attendance is voluntary The course, lecture, or meeting is not job related The employee does not perform any productive work during attendance
Hours Worked: Training Time
Training Time Issues for LTC: In-service NA Training
Exempt vs. Non-exempt
Break/Lunch Time Requirements
When must breaks and lunch be paid time?
Break/Lunch Time Requirements
Posting Expectations
State and Federal Posting requirements Prominence Location What must be posted Alternatives to posting
Overtime Issues
Who is eligible When must overtime be paid Calculation of Base rate 80/80 rule
Timekeeping Procedures
Requirements for employers Retention of documents Punch-in When are employees “on the clock” Off the clock work
Training and In-service Issues
When must you pay an employee for training time Nurse aid training issues How much c
Minimum Wage Issues
Payroll Issues
Direct Deposit requirements
Employee Use of Cell Phones, email, PDAs impact on FLSA
DOL has not directly addressed, but time spent using cell, PDAs, etc, during non-business time by nonexempt personnel during non-business hours may be considered compensable time. Employees must be paid for work purpose use, unless de minimus
Deducting for lost or damaged electronics: Exempt employees: Salary deductions for lost or damaged company property would defeat the employee’s exemption b/c salary would not be “guaranteed” or paid “free and clear” DOL opinion 3/10/06 Non-exempt: DOL has stated an employer may not require an employee to pay for an expense of e/er business if doing so reduces e/ee’s pay below required min. wage or overtime premium due.
Wisconsin Caregiver Background Check Law (WCBC)
“Regular” means contact that is planned, scheduled, expected or periodic. “Direct contact” when used in reference to a person’s contact with clients, means face-toface physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or misappropriation of a client’s property. In defining “caregiver,” err on the side of finding individuals covered.
Wisconsin Caregiver Background Check Law (WCBC)
Summary of CBC Process Applicant completes Background Information Disclosure Form (BID) As applicable from BID, check other states, military discharge, etc. If “clean” BID, eligible for provisional hire for up to 60 days Submit CBC to Wisconsin Department of Justice Review results of CBC (criminal history and DHFS search) Check for crimes/findings that preclude employment As applicable, follow-up on required information for “look back” crimes Employment decision Resubmit four years from anniversary date
CBC Issues and Problems
Non-client residents Minors: Not required to conduct, when minor but must conduct upon employee turning 18 Volunteers: Not covered, unless serving e/ee role Temporary/pool employees
CBC Issues and Problems
Document Retention Sharing results between covered entities Anniversary date: CBC entire process must be conducted every four years, including completion of BID form. Unless: Entity adopts policy that annually notifies all employees that they must provide the employer with the information that is required on the BID form. See 2005 WI Act 351
Obtaining out of state information: Must make a “good faith effort” to obtain the similar information from the other state. Employee reporting of offenses/handbooks
Employment Discrimination Based on Arrest or Conviction Records
Wisconsin includes arrest or conviction records within the definition of employment discrimination. Minority of States “substantially related test” for convictions and pending charges
Arrests cannot be used as the basis for employment decisions if they substantially relate to the position.
The “Substantially Related Test”
Affirmative obligation vs. defense to discrimination charge. HFS 12.06 “Factors” Balance of risks
Avoiding/Defending Against Employment Discrimination Charge
Employment application question: Okay to ask about convictions/arrests?
Explaining why applicant not hired: Okay to tell them reason was conviction?
Case by case determination Defenses Employee lied on application 50.065 language vs. 111.335 Job “substantially relates” to crime
Screening Options
Wisconsin Consolidated Court Automation Programs (“CCAP”) www.wcca.wicourts.gov Uses Limitations More than criminal history, e.g. traffic, civil, family
Other Screening Options
FBI Background Checks Drug/alcohol testing Credit/financial checks Sex offender databases http://offender.doc.state.wi.us/public/search/search.jsp
Internet/Facebook/MySpace
Contracting for Screening Services
Who to use? How to find a good service? Due diligence Getting value Assurance that applicable required checks are included in service
Employment Eligibility Determination
Revised I-9 Forms How has it changed? Online version: – http://www.uscis.gov/files/form/i-9.pdf
Document Retention
Employment Eligibility Determination
SSA Mismatch Letter Regulations Status Plans for future
E-Verify What is it? Do I have to e-verify? Should I?
SSNVS Verification
Questions?
Select *2 to enter queue
February 9, 2008
Human Resources for Long Term Care Session II: Wag & Hour Issues Presenters: Brian R. Purtell Wisconsin Health Care Association & DeWitt Ross & Stevens S.C. (608) 252-9366 [email protected] [email protected] & Mindy Rowland Buenger DeWitt Ross & Stevens S.C. (608) 252-9320 [email protected]
Today’s Session
Overview and Review of the Fair Labor Standard Act (FLSA) On-Call/24 hour coverage Exempt vs. Non-exempt Break/Lunch time requirements Posting expectations Overtime Timekeeping procedures Minimum wage
Overview and Review of the FSLA
Overview, applicability Recent focus on LTC providers Results of DOL LTC review Enforcement Remedies Penalties Risks Focus areas
Overview and Review of the FSLA
C
Overview and Review of the FSLA
DOL Activity in LTC Review Findings
Overview and Review of the FSLA
Enforcement Penalties Remedies Focus areas
Overview and Review of the FSLA
DOL and DWD Resources
Hours Worked: Issues
Suffered or Permitted On-Call Time Meal and Rest Periods Waiting Time Training Time Travel Time Sleep Time
Suffered or Permitted
Wisconsin law: E/ees must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the e/er and pursued necessarily and primarily for the benefit of the e/er’s business” Wis. Admin. Code DWD 272.12(1)
Suffered or Permitted
Federal law: “employ”= “to suffer or permit work” Work not requested but suffered or permitted is work time
Hours Worked: On-call time
On-call time is hours worked when Employee has to stay on the employer’s premises Employee has to stay so close to the employer’s premises that the employee cannot use that time effectively for his or her own purposes
On-call time is not hours worked when • •
Employee is required to carry a pager Employee is required to leave word at home or with the employer where he or she can be reached
Hours Worked: On-call time
Case-by-case determination. Factors include: Length of any required time limits for responding to calls. Geographic restrictions on employee’s movements; Frequency of actual calls during such time; Ability to trade “on-call” responsibilities, and number of employees working on-call; Whether use of pager would ease restrictions on employee
Hours Worked: On-call time
Factors (cont): Whether employee actually engaged in personal activities while on-call Whether agreement existed re: compensation while on-call, and whether employees were aware at time of accepting position; Geographic location of employer; and The effect of requiring compensation for on-call activities both to employer and employee
Hours Worked: Meal and Rest Periods
Meal periods are not hours worked when the employee is relieved of duties for the purpose of eating a meal Rest periods of short duration (normally 5 to 20 minutes) are counted as hours worked and must be paid
Hours Worked: Meal and Rest Periods
LTC Issues: For periods to not be hours worked, staff must be fully relieved from responsibilities. Regular pulling staff from meals/breaks to attend to residents may equal compensable time. Meal periods are not hours worked when the employee is relieved of duties for the purpose of eating a meal
Unauthorized extension of break, contrary to clear policy, need not constitute hours worked.
Hours Worked: Waiting Time
Counted as hours worked when: Employee is unable to use the time effectively for his or her own purposes; and Time is controlled by the employer
Not Counted as hours worked when: Employee is completely relieved from duty; and Time is long enough to enable the employee to use it effectively for his or her own purposes
Hours Worked: Training Time
Time employees spend in meetings, lectures, or training is considered hours worked and must be paid, unless Attendance is outside regular working hours Attendance is voluntary The course, lecture, or meeting is not job related The employee does not perform any productive work during attendance
Hours Worked: Training Time
Training Time Issues for LTC: In-service NA Training
Exempt vs. Non-exempt
Break/Lunch Time Requirements
When must breaks and lunch be paid time?
Break/Lunch Time Requirements
Posting Expectations
State and Federal Posting requirements Prominence Location What must be posted Alternatives to posting
Overtime Issues
Who is eligible When must overtime be paid Calculation of Base rate 80/80 rule
Timekeeping Procedures
Requirements for employers Retention of documents Punch-in When are employees “on the clock” Off the clock work
Training and In-service Issues
When must you pay an employee for training time Nurse aid training issues How much c
Minimum Wage Issues
Payroll Issues
Direct Deposit requirements
Employee Use of Cell Phones, email, PDAs impact on FLSA
DOL has not directly addressed, but time spent using cell, PDAs, etc, during non-business time by nonexempt personnel during non-business hours may be considered compensable time. Employees must be paid for work purpose use, unless de minimus
Deducting for lost or damaged electronics: Exempt employees: Salary deductions for lost or damaged company property would defeat the employee’s exemption b/c salary would not be “guaranteed” or paid “free and clear” DOL opinion 3/10/06 Non-exempt: DOL has stated an employer may not require an employee to pay for an expense of e/er business if doing so reduces e/ee’s pay below required min. wage or overtime premium due.
Wisconsin Caregiver Background Check Law (WCBC)
“Regular” means contact that is planned, scheduled, expected or periodic. “Direct contact” when used in reference to a person’s contact with clients, means face-toface physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or misappropriation of a client’s property. In defining “caregiver,” err on the side of finding individuals covered.
Wisconsin Caregiver Background Check Law (WCBC)
Summary of CBC Process Applicant completes Background Information Disclosure Form (BID) As applicable from BID, check other states, military discharge, etc. If “clean” BID, eligible for provisional hire for up to 60 days Submit CBC to Wisconsin Department of Justice Review results of CBC (criminal history and DHFS search) Check for crimes/findings that preclude employment As applicable, follow-up on required information for “look back” crimes Employment decision Resubmit four years from anniversary date
CBC Issues and Problems
Non-client residents Minors: Not required to conduct, when minor but must conduct upon employee turning 18 Volunteers: Not covered, unless serving e/ee role Temporary/pool employees
CBC Issues and Problems
Document Retention Sharing results between covered entities Anniversary date: CBC entire process must be conducted every four years, including completion of BID form. Unless: Entity adopts policy that annually notifies all employees that they must provide the employer with the information that is required on the BID form. See 2005 WI Act 351
Obtaining out of state information: Must make a “good faith effort” to obtain the similar information from the other state. Employee reporting of offenses/handbooks
Employment Discrimination Based on Arrest or Conviction Records
Wisconsin includes arrest or conviction records within the definition of employment discrimination. Minority of States “substantially related test” for convictions and pending charges
Arrests cannot be used as the basis for employment decisions if they substantially relate to the position.
The “Substantially Related Test”
Affirmative obligation vs. defense to discrimination charge. HFS 12.06 “Factors” Balance of risks
Avoiding/Defending Against Employment Discrimination Charge
Employment application question: Okay to ask about convictions/arrests?
Explaining why applicant not hired: Okay to tell them reason was conviction?
Case by case determination Defenses Employee lied on application 50.065 language vs. 111.335 Job “substantially relates” to crime
Screening Options
Wisconsin Consolidated Court Automation Programs (“CCAP”) www.wcca.wicourts.gov Uses Limitations More than criminal history, e.g. traffic, civil, family
Other Screening Options
FBI Background Checks Drug/alcohol testing Credit/financial checks Sex offender databases http://offender.doc.state.wi.us/public/search/search.jsp
Internet/Facebook/MySpace
Contracting for Screening Services
Who to use? How to find a good service? Due diligence Getting value Assurance that applicable required checks are included in service
Employment Eligibility Determination
Revised I-9 Forms How has it changed? Online version: – http://www.uscis.gov/files/form/i-9.pdf
Document Retention
Employment Eligibility Determination
SSA Mismatch Letter Regulations Status Plans for future
E-Verify What is it? Do I have to e-verify? Should I?
SSNVS Verification
Questions?
Select *2 to enter queue
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