HR Base Camp Roundup – April 26th, 2022

This week saw some engaged discussions about new employees in HR Base Camp and the HR Solution Center, including what to do when things aren’t quite working out. Here are last week’s top 3 HR Q&As:

  1. What do I need to know about holding 90-day probationary periods for new employees?
  2. How can I switch from front-loading my employees’ PTO to having it accrue over time based on the number of hours worked?
  3. How do I go about terminating an employee who has been with my company for less than 30 days in New York?

 
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What do I need to know about holding 90-day probationary periods for new employees?

There was a healthy discussion about putting new employees through a 90-day probationary period in HR Base Camp. CEDR’s HR experts had to step in and clear up a few important points.

Answer: While we are fans of creating “Getting Acquainted Periods” at CEDR, it’s important to know that the term “probationary” is a legal term of art and it is best to avoid it when it comes to describing a new employee’s first few weeks or months on the job. It has a meaning that does not always jive with what you think it does, and if you end up in a hearing, the term can be used against you in ways that you might not want. Specifically, the term “probationary” could be interpreted legally as invalidating your status as an at-will employer.

If new employees are placed under “probationary periods” (e.g., 30, 60, and 90 days), employees and their lawyers might argue that employees have been promised employment for the duration of their probation, and that any termination must come after this trial period. It’s for this reason that employers should stay away from the “probation” terminology, and instead use language about employment status that very clearly aligns with at-will status.

That’s why all CEDR handbooks include customized language outlining the scope of a new employee’s “Getting Acquainted Period” as your business would like to define it. Our expert HR advisors are very deliberate about avoiding the term “probationary” while customizing your handbook to avoid any potential damage to your at-will status as an employer.

 
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How can I switch from front-loading my employees’ PTO to having it accrue over time based on the number of hours worked?

An employer wanted to begin having their employees earn PTO via an accrual process rather than frontloading it each year and wanted to know how to make the switch in a way that was fair to their employees.

Answer

CEDR Solution Center Manager, Grace Godlasky, actually addresses the pros and cons of accrual versus frontloading systems for providing time-off benefits in the above video we made for CEDR Members. We’ll also break down some key considerations on this topic for you below.

First, it’s important to note that states that have laws requiring employers to provide sick or any other type of leave will often have guidelines in place related to how and when that time must be distributed, whether or not unused time should rollover at the end of the year, and whether or not time-off has to be paid at the time of an employee separation. So, as with any other policy in your employee handbook, it’s imperative that you make sure your proposed policy is in line with the laws in your state before making this kind of change for your business.

When there are no laws dictating what you must do, it’s usually up to you as the employer to determine how you want to distribute the time off that you offer your team members.

Moving from a frontloading to an accrual-based system is a really common switch that we see our members make. Changing to an accrual system can help prevent employees taking all their vacation time and then quitting, quitting as soon as time is frontloaded in order to receive that time as a payout, or taking all of their time in the first couple months of the year and causing scheduling conflicts. 

On the flip side, while this system makes it easier to stagger employee use, it can also be more difficult to administer since you’ll need to set accrual rates and monitor each employee’s time according to their anniversary year. There are also considerations related to how to ensure your employees will actually be able to use any time that they earn. If your employees are accruing that time up until the very last day of the year, for example, it will be impossible for them to use that time before the year ends and a new accrual program starts.

Due to the potential for administrative headaches caused by switching to an accrual-based time-off system, some employers choose to stick to a grant-based system because of its simplicity. 

If you want to switch to an accrual system and minimize the potential for headaches, having a really robust timekeeping system can make all the difference. If your system can properly track all this for you, then the switch isn’t very difficult to make at all. The timekeeping system CEDR provides as part of membership is built for just this type of customization. You can watch a demo video of that software here.

 
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How do I go about terminating an employee who has been with my company for less than 30 days in New York?

An employer in New York had a new employee who missed roughly two weeks of work for various reasons during their first month of employment. This employer wanted to know what they needed to do to safely terminate that employee.

Answer: The absenteeism cited in this case is beyond excessive. But any time we terminate or help solve an HR issue in the Solution Center, it is incumbent upon us as advisors and you as the employer to check your own house and make sure that you are not vulnerable. At the very least, if you are vulnerable, you’ll want to know how to correct things going forward and hope for the best in this case.

Did a hiring letter get issued to this employee and the rest of the team? In New York, employers are required to give this specific notice at the time of hire. That letter and an additional notification must contain detailed information and is part of New York’s Wage Theft Act. There could be a problem if you have not issued that letter. Employers who fail to give the letter can be sued in civil court and fined up to $250 /day with a cap of $5000 per employee. You would also have to pay their legal fees.

Additionally, the state of New York has a mandatory paid sick leave law. This employee was eligible to use a small portion of that time-off benefit after working 30 hours (or more if you have a grant-based policy). While it appears she has been absent far too much, it is crucial that you were accounting for that time.

Going back to her wages, we always want to know that she was appropriately classified as a non-exempt worker, was paid correctly for her wages, that you tracked all of her time, and that all taxes were correctly withheld. We would also want to confirm that there were no “working interviews” conducted.

These things we point out are known as exceptions to the At-Will Doctrine. While we could add a few more things, this employee is absent too much, in the end. The hiring letter, a good job description, and having the proper New-York-Based policies signed and acknowledged by her would make this termination as routine as possible.

Though terminations like this are usually safer the earlier they happen in a new employee’s tenure, all of these state law details are why it is so crucial to work with an HR expert to assess your risk and protect your business when it comes to any separation you have to deal with.

Our free separation guide is also a good resource any time you are considering separating from an employee.
 
Sometimes the right thing to do is say goodbye. Click to download CEDR's free separation guide.

Apr 25, 2022

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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