HR Base Camp Roundup – May 19th, 2022

This week, the top questions from our HR Base Camp Facebook Group and HR Solution Center touch on the importance of having specialized knowledge of employment laws when it comes to writing employee handbook policies. Here are our Q&As for this week:

  1. Should you require your employees to give a certain amount of notice when they resign?
  2. Do you have to pay employees for travel time if they are asked to work someplace other than their usual workplace?
  3. How do Family Medical Leave of Absence (FMLA) laws apply to remote employees?

 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!
 

Should you require your employees to give a certain amount of notice when they resign?

An employer was curious about whether they should include a three-month notice clause in their contract for an associate doctor, which opened up a discussion about requiring notice, in general.

As management professionals ourselves, we get it. Of course you want your employees to give you a heads up when they decide to leave your business.

Often, when an employee leaves abruptly, whether they are resigning or you terminate them, it causes stress. Real “What-am-I-supposed-to-do-now” type stress. And this doesn’t just affect you as a manager or owner, but your entire team feels that pressure when they’re faced with the need to pick up the extra work left on the table by that former employee. 

The unexpected departure of a doctor or any employee, especially clinical providers, can cause even more hardship on your business as it can lead to lost production, the need to reschedule patients, and a prolonged and difficult search for a well qualified replacement.

All of that being said, we understand why you might want to require some or all of your employees to give you a certain amount of notice before they quit. Still, requiring employees to give notice before resigning is not something you want to do from an HR and employment law standpoint. 

There are two ways that this comes up for employers: 

  1. When employers want to put notice requirements in associate or hygiene agreements (contracts) and, 
  2. When employers want to put notice requirements that apply to all employees in their employee handbook.

Let’s start with the contract side. Even with a notice requirement in place in an employee contract, you can’t force someone to work for you. If an employee really wants to leave, they will leave regardless of what you or their contract says about it. You can’t call on the sheriff or the court to force them to stay. Your only recourse would be suing them for violating the notice period in their agreement, but that’s not only going to cost your business THOUSANDS of dollars to litigate and enforce, but it also will not resolve the issue of being down a staff person and the time and expense of the lawsuit is not going to be worth it. 

And that’s the best-case scenario. Even worse are the employees who will grudgingly give the required notice and continue to work during that notice period. That often doesn’t go very well. These employees don’t want to be there anymore, and they’re not going to be happy about feeling forced to be there. They might even take it upon themselves to start performing badly – showing up late, ignoring their charting requirements, etc. – so that you will fire them and nullify that notice requirement for them!

A desperate, unhappy employee is not someone you want working for you. This very unhappy person with one foot out the door also continues to have access to all your systems and unhappy people can be very imaginative with what to do with that access. 

In our experience advising employers on this issue over the past fifteen-plus years, employers almost always regret including a notice requirement. Whether you’re writing your handbook policies or an employee agreement, we highly recommend you work with a professional to make sure your bases are covered and your practice is protected as best as possible by that document.

Regardless, the takeaway here is that “requiring or penalizing” employees within agreements or policies to give two weeks or more of notice can cause problems for your business. Best practice is to request employees give notice, not demand it.

So, if your employee handbook or the employment contracts you use employ any language suggesting that employees are “required” or “must” give a certain amount of notice before quitting, reach out to CEDR to discuss getting those documents updated before they become a liability.

 
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Do you have to pay employees for travel time if you ask them to work somewhere further away than their usual workplace?

An employer purchased a second location. They wanted one of their employees to work at this new location from time to time but, since it was further from the employee’s home than their usual workplace, the employer wasn’t sure whether or not they’d have to pay the employee for the time they spent traveling to the more distant site.

Rules about paying employees for travel time can get very complicated, so we always ask our CEDR members to check in with our Solution Center team about any specific scenarios that come up. 

There are federal laws about paying for travel time that hinge on whether the employee is driving or is a passenger, whether the travel takes place during regular work hours, if the travel takes them out of town and overnight, where they’re traveling to and from, and where they usually report to work in the morning. Then there are state laws that may require pay when the federal laws don’t. 

You have one easy “out” to get you out of having to figure this out. If the employee is properly classified as ‘exempt’, then you don’t have to pay them for their travel time or track that time for potential overtime payments. The difference with non-exempt employees is that they need to be paid for all hours worked. This begs the question, “When is travel time work time?”

You are not required to pay for an employee’s time or mileage reporting to work each day. It is the employee’s personal choice about where to live and work, so paying for all that is, of course, on them. 

Telling the employee to report somewhere else that is not their usual workplace is not the employee’s personal choice. Therefore the employer does have to pay for the time the employee is being required to travel for work. 

The good news is that you can deduct the amount of time they normally would have spent commuting to work anyway. So if the employee’s normal home-to-office commute is 15 minutes, and you schedule them to work at a different office that takes them 45 minutes to get to, you are responsible for paying for that extra 30 minutes of travel time as they’re spending that time traveling at your direction. 

Don’t forget about mileage. Most employers pay for mileage if they are sending an employee on a trip. This very often is not actually required, but something that is very appreciated by employees (and even more so now since gas prices are skyrocketing). 

Federal law only requires that you pay mileage if failing to do so would drop the employee’s net pay below minimum wage when taking into account the cost of gas and the wear and tear on the vehicle. That’s a weird rule, we know. And it’s another reason why CEDR’s team of HR Advisors is here to help figure out those scenarios. But there are some states that require mileage reimbursement under other circumstances as well. 

If you were a CEDR member asking this question, we’d encourage you to reach out to the Solution Center for help with this so our team of HR experts could make sure your decision was based on the best available guidance with respect to the specific circumstances of your situation.

Click here to learn more about how access to the CEDR Solution Center can help support and strengthen your business.

 
Click to download The Secret to Better Employee Engagement and Retention for free.
 

How do Family Medical Leave of Absence (FMLA) laws apply to remote employees?

An employer with more than 50 employees wanted to know how to address a maternity leave request from a remote employee who works from home in a different state.

This is a question that we don’t hear very often but, as more and more employers seek to offer flexible working conditions as a benefit of employment, it’ll no doubt become applicable to an increasing number of employers over time.

Any HR nerd should be able to tell you the basic rule for when FMLA applies. The employer needs to have at least 50 employees within 75 miles. Seems fairly straightforward.

In this employer’s situation, they definitely had more than 50 employees, but the employee requesting leave works remotely from their home 300 miles away. Since the employee is well outside that 75 mile limit, by our own FMLA rule-of-thumb, it sounds like the employer should be able to deny a leave request. And yet, that’s actually the wrong answer. FMLA applies to the remote employee regardless of how far away they live from the office. 

This is where having an expert who can look into the technicalities, and who even knows that there are technicalities, is really important. 

The way that 75 mile requirement works is this: When an employee approaches you about taking a leave of absence, you need to determine if there are at least 50 employees within 75 miles of that employee’s worksite. 

It seems that the DOL really didn’t want employers to get away with hiring remote workers in order to avoid having to follow the FMLA. They actually made a rule for defining a “worksite” for a remote employee, and it is NOT the employee’s home even though that’s the only place they’re working. 

The Department of Labor’s FMLA guidance states that a remote employee’s “worksite” is “the office to which they report or from which they receive assignments.” 

In this particular case, the employer only has 1 physical location. Therefore, their 1 physical location is the remote employee’s worksite. If there were more than 1 location, then you’d need to consider which location is the one really directing the remote employee’s work. In most cases it’s going to be the “corporate” or “main” location where the owner is primarily working. 

Since the employer does have more than 50 employees working within 75 miles of their office, they do need to follow the FMLA rules when their remote employee requests a leave of absence.

Most employers, even very small employers, allow employees to take a leave of absence. The key difference for FMLA employers is that the employer has to comply with strict rules governing how much (unpaid) leave is provided, what leave can be taken for, how health insurance is handled, etc. And, of course, FMLA gives employees the legal right to take that leave. 

If an employee is requesting FMLA, always be sure you are fully documenting the situation as there are strict notice and documentation requirements placed on employers. The Department of Labor has forms that employers should use for these situations. 

Keep in mind that even though FMLA only applies to employers with 50 or more employees, smaller employers can inadvertently make their businesses subject to that law. This happens when you include language in your employee handbook or other documents that references FMLA. Lots of small employers refer to a “leave of absence” as “FMLA” even though the Family Medical Leave Act does not apply to them. But the DOL has repeatedly ruled that if an employee is told you offer FMLA, you in turn have to provide it and can face fines and other penalties if you don’t follow it just as closely as a large employer has to. 

We see this come up when employers use handbooks that weren’t written by experts with specialized knowledge of policies and employment laws, or when your handbook wasn’t customized specifically for your business. This includes using handbooks built from online templates or downloaded from the internet, “free” handbooks provided by your payroll provider or another company that specializes in fields outside of HR, handbooks borrowed from other businesses or industries, and more.

If you’re not sure where your handbook stands on legal compliance and would like to have it evaluated by an HR expert, click here to schedule a conversation with us to determine if you qualify to have your handbook reviewed by a Solution Center Advisor for free.

At CEDR HR Solutions, we believe that “Better workplaces make better lives,” and we are committed to helping our members build stronger, better-protected businesses. 

Click here to learn more about how CEDR’s HR experts can help you build a better business for you and your team. 
 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

May 18, 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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