Ask the Expert Series: Six answers to HR questions, featuring Bent Ericksen & Associates

From Bent Ericksen & Associates

Question 1: I had a staff member go home sick after working one half day. Is it required that I pay her four hours of regular work and four hours of sick leave, or can I count the entire eight hours as sick leave? I want to encourage sick employees to stay home and not bring the illness to work, which has the potential of infecting other staff.

Answer: While I agree with your philosophy, the approach may put you at risk. Wage and hour laws require the employer to pay for “time actually worked.” If the employer recorded the employee as out on sick leave the full day when the employee had actually worked four hours, this could be construed as a technical misrepresentation. Additionally, if the employee filed an on-the-job injury claim during a time when the employee's time record showed sick leave, then that too could cause the employer problems.

My recommendation is to emphasize with employees how significant their disservice is to the practice, both to coworkers and patients, when they attempt to work while visibly impaired due to illness. Certainly the problem is one of judgment, but by emphasizing why you don’t want the employee to return to work prematurely, it will assist staff in making those decisions.

Question 2: I’m a California employer. What notices are required to be distributed to employees?

Answer: Required notices include:
“For Your Benefit” (DE 2320), which explains California's unemployment insurance and disability insurance programs and must be referenced when an employer discharges or lays off an employee, or places an employee on a leave of absence;
“State Disability Insurance Provisions” (DE 2515), which explains an employee's disability insurance rights and must be distributed to all new hires and if an employee needs disability leave;
“Workers' Compensation Pamphlets,” for all new employees that must receive a workers’ compensation pamphlet and another pamphlet if they are injured on the job;
“Sexual Harassment Information Sheet,” every California employee must receive a sexual harassment information sheet from his/her employer;
“Notice to Employee as to Change in Relationship,” employers must give immediate written notice to an employee of his/her discharge, layoff, or leave of absence;
“Health Insurance Premium Payment (HIPP) Program Notice,” California employers of 20 or more who provide health insurance for their employees must notify employees being terminated or voluntarily resigning of the availability of continued health insurance coverage at the state's expense;
“Notices to Employees in Deferred Compensation Plans,” employers who offer employees an employer-managed deferred compensation plan must provide employees with a notice regarding the plan prior to enrollment and quarterly notices thereafter.

Question 3: We use a time clock to track our workers’ hours. Can we round up or down to the nearest five minute increment?

Answer: Federal wage and hour law permits you to round off worker’s time to the nearest five minutes, one-tenth, or quarter of an hour, as you choose. But you need to be consistent, and be sure that your rounding practices do not always result in employees not being paid for time they work. For example, you could always round in favor of the employee, or have a policy that rounds back for starting times and forward for ending times.

Question 4: My employees say they prefer to skip their breaks and add them onto the meal period so they can have an extended lunch. As long as they receive the correct total break time, is this allowed?

Answer: This is not allowed in states that have laws requiring rest breaks. For the states that do, to be in compliance, you must require employees to take all breaks separately and during the proper time periods. If the nature of work and circumstances are such that the required breaks cannot be taken, then the employee must be paid for all time worked.

Question 5: I live in a state that requires rest breaks and meal periods. No matter how often I remind my employee, he refuses to take his rest breaks. Since I have given him every opportunity to take the breaks but he chooses not to, am I in compliance?

Answer: No. Your employee cannot legally waive his rights to receive the required rest breaks or meal periods. It is not the employee's choice whether or not to take the required breaks. To be in compliance, you must require your employee to take all mandated breaks, and you may even need to discipline an employee who refuses to do so.

Question 6: I have just purchased a practice. The former owner informed the staff that the practice had been sold and that their employment with the practice would be discontinued. I would like to hire some of them. However, during the interview, they told me that they wanted to have the same number of weeks of vacation they had earned with the prior doctor. New staff will be entitled to a one-week vacation after one year of employment, and these “old” new employees are asking for more than that. Will I be discriminating if I give some new employees better benefits than others?

Answer: It is in your best interest to keep good staff that are familiar with the practice and know the patients. It makes sense that these people want to retain the same vacation benefits they had with the former owner. Typically all employees in the same category (full-time, part-time, etc.) must receive the same benefits. But, based on the fact that these former employees can provide a significant benefit to the new owner, you can “grandfather” the same vacation benefits that they received with the prior owner. The key is to document in each person’s personnel file the “grandfather” action you have taken, and the reason for this action. If you do this, you can satisfy their vacation requirements and hire these important people. Be sure also to take into consideration other types of requirements they may have, i.e., salary, work hours, other types of benefits, incentive or bonus pay, etc., that they were used to getting. Consider the cost of the total package carefully before making a hiring decision.

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For more than 25 years, Bent Ericksen & Associates has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or www.bentericksen.com.