HR Base Camp Roundup – January 9th, 2023

In this week’s edition of the HR Base Camp roundup, we discuss the legality of an English-only speaking policy for your employees, what to do about an employee who’s taking too many breaks throughout the day, and how to handle a new employee’s request to be classified as an independent contractor. All of these situations have severe HR consequences if handled incorrectly, so check out our guidance below!

Here are the HR Q&As from our HR Base Camp Facebook Group and HR Solution Center:

 

Some of my employees speak a different language to each other. Can I enforce an English only policy unless it’s to assist a customer?

As a general rule, English-only policies aren’t a great idea. The Equal Employment Opportunity Commision has made it clear that English-only policies violate the law unless you can show that they’re justified by a business necessity.

What does this mean? Essentially, this rule should be limited to situations where it’s needed to operate safely or efficiently. For example, say two assistants who speak Spanish are working on a patient with a doctor that doesn’t speak Spanish. It would be acceptable to ask them to only speak English while they’re working together. The doctor being unable to understand what the assistants that are working with him are saying could potentially lead to a mistake being made or decreased productivity.

If this concern stems from employees chatting while on breaks or during lunch, or generally being a good “cultural fit”, we would advise against taking any action. An English-only rule for these circumstances will almost never be justified.

 

How should I address an employee that is taking too many breaks throughout the day?

We know how frustrating this can be for employers. If you constantly see that an employee isn’t at their workstation, it can feel like they’re avoiding work and taking advantage. Although there’s a federal law that states you can’t make employees clock out for breaks under 20 minutes, that law doesn’t mean that an employee can take as many under 20 minute breaks as they want. Excessive breaks are certainly something you can address and discipline for, but there’s a few things to consider first.

I’m sure you won’t be surprised when we say you have to check your state law. Many states don’t have laws entitling employees to regular breaks, but some states do require that employers provide breaks at certain times throughout the day. If you’re in one of these states, you want to make sure that the “excessive” breaks don’t fall under the time the law requires you to provide.

You should also consider whether the breaks might be related to a medical condition. If that’s the case, you’ll need to address things differently. We recommend talking to an HR Expert if there’s a chance the breaks may be considered protected.

Now, if there’s no state law in place, no medical condition, and the breaks aren’t in line with what the rest of your staff takes, you can address the issue with the employee directly. Remind the employee of your handbook policy (your handbook should include a break and meal period policy) and provide her with a copy. You want to make it clear that you aren’t prohibiting breaks and you know there are times that require stepping away, but you’ve noticed that the frequency/length of her breaks is much more than what others are taking. Explain the impact this has on the office as a whole and the rest of your team members.

It’s a good idea to use your own observations during the discussion. For example, “I’ve gone to check the front desk and you haven’t been there for extended periods of time.” Make sure to document the conversation. If this is the first time you’re addressing this with the employee, a verbal warning is probably enough. If the issue persists, you can move forward with a written  corrective action or final warning.

 

A new temp employee asked to be classified as an independent contractor instead of an employee. Are there any issues with this?

Short answer: yes. Long answer…

Many people assume that anyone can be classified as an independent contractor as long as the correct paperwork is filed and they’re paid as such. It’s not uncommon for even attorneys or payroll companies to make this mistake. This misinformation can be incredibly costly to you as an employer.

The IRS has strict rules regarding independent contractors. Ultimately, it comes down to how much control you have over the employee. Do you have control over the employee’s schedule and what they do on the job? Do you control when and how they get paid? If the temporary employee is performing the same work as a regular W2 employee, under the same conditions, then they should be classified the same way.

The safest option is to never assume a worker is an independent contractor. Assume their classification is a W2 employee and then you can conduct an analysis to determine if they can in fact be classified otherwise. CEDR has an independent contractor guide that can be helpful. If you’re still unsure, talk to an HR expert before making a decision.

 

At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.

Have an HR question you need to talk through with an HR expert? Reach out to the Solution Center for expert guidance, or get your questions answered in our private, professional Facebook Group, HR Base Camp.

Jan 9, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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