HR Base Camp Roundup – July 6th, 2022

This week’s HR Q&As from our HR Base Camp Facebook Group and HR Solution Center include the popular question of when employers are required to offer and pay for breaks, how to handle it when an employee suggests they plan to step down and then changes their mind, and our thoughts on point-based employee attendance policies. 

Here are our top questions from the last week:

  1. When are employees required to clock out for breaks?
  2. What are your options if an employee gives you a quit date then changes their mind?
  3. What should you know about point-based attendance systems?

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

When are employees required to clock out for breaks?

I have a new employee who never clocks out for lunch. She’ll take a short 20-minute lunch each day but always stays clocked in for the entire period. Am I required to pay for this time? Can I require her to clock out for lunch?

Break time – it’s a common sticking point between employers and employees. 

So what’s the rule when it comes to breaks?

The answer to this varies greatly depending on where you’re located. Some states have much stricter requirements when it comes to providing employees with breaks, including penalties and additional payments that have to be provided to employees when breaks are not made available.

So, if you’re not sure what the laws in your state say on this issue, you can always check your CEDR handbook to see what your expert-crafted policy says on the matter or reach out to the Solution Center for guidance.

If you’re not in a state that has laws specifically about breaks, there is no federal law stating that you have to provide them (other than a guideline that you should give employees a reasonable amount of time to use the restroom or eat an occasional snack). However, if you do allow employees to take short breaks, so long as those breaks don’t go longer than 20 minutes, that time must be paid and counted as hours worked for overtime purposes

As long as it’s in line with state and local laws, you are welcome to institute and enforce a policy that requires employees to clock out and take a full meal break that lasts more than 20 minutes. You can also set the expectation for how many breaks employees are allowed to take during a shift, how long those breaks should be, and how long employees have to work before they are entitled to a short break or meal period. You just need to make sure you put that policy in writing, communicate it to your employees, and enforce it equally with everyone on your team.

This is another example of the type of policy the HR experts in our Solution Center are happy to customize for you when you become a CEDR Member. We can also help you enforce that policy if you find that your employees are taking advantage of it and can even customize your time tracking system to help you better keep track of breaks for your employees.

For a more detailed explanation of this issue, check out our blog on break requirements here.

 
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What are your options if an employee gives you a quit date then changes their mind?

One of my long-term employees told me they were planning to resign on a specific date. Trouble is, once we hired a replacement, she retracted her resignation. Do I have to keep her on staff now that she’s changed her mind?

This is a difficult – and, unfortunately, very common – situation to find yourself in as an employer. It’s extremely frustrating to take an employee at their word that they are leaving and then put in the work (and money!) to find a replacement only to have them change their mind later. 

This puts you in the sticky spot of having to decide between your tenured employee and the person you just brought on board. And, no matter how you slice it, it means you end up having to play the bad guy to someone.

We all know that, in a general sense, once an employee has expressed a desire to leave, it’s usually in your best interest to let them go. 

Whenever an employee expresses a desire or a plan to quit, it’s important to get that notice in writing and then respond with an “acceptance of resignation” letter, which you should also keep a copy of in your files (if you’re a CEDR Member, we are happy to create and provide all of this documentation for you whenever you need it). 

That way, if that employee later changes their mind about leaving, you’ll have something you can point to and say, “We took the employee at their word, acted accordingly, and hired a replacement.”

Plus, with those documents on record, you’ll still have the flexibility to determine if you’d rather keep both employees, hold on to the current employee, or usher in the new. Either way, having that letter/email/text from them on hand gives you the power to choose and you’ll be able to rest easy knowing that your documentation tells the story of what actually happened.

This is a great example of how having a formal HR system can really help you run your business with the least amount of friction possible.

In case you need one, you can download our free Voluntary Resignation Form here.

 
Documentation protects your practice. Download your free voluntary resignation form here.
 

What should you know about point-based attendance systems?

My employee has had a lot of absences due to personal reasons, illnesses, and other medical issues. After a recent absence, I was ready to issue her a write-up based on the number of points she has against her under our attendance policy. But before I could get to it, she called out yet again, and now she’s been in the hospital for several days. Now, under the points system, it’s time to terminate, but I never gave the write-up. Do I still have to do that first? 

There’s a lot going on here that would really best be covered by a 1-on-1 conversation with one of the HR experts in CEDR’s Solution Center

Ideally, we’d want to work with you to address the attendance issues you’re dealing with in a way that took account of this employee’s unique set of circumstances so we could set you up with a solution that was customized for that employee and your business needs, but that’s not something we can really do in this format.

Still, there is one issue that stands out in this inquiry that we can address directly here, and that’s the topic of point-based attendance policies, in general.

We strongly discourage employers from using a point system to track absences or issue disciplinary action based on a number of “points” accrued. 

Usually, those policies assign a point per absence regardless of the reason for that absence and a certain number of points has a specific consequence. Seems like an easy, objective way to handle attendance, right?

Unfortunately, attendance points policies aren’t practical and can land you in a heap of legal trouble. The EEOC regularly faults such policies for resulting in unlawful, discriminatory treatment toward employees. By treating all absences the same, the policies fail to make distinctions for legally protected absences such as those due to disabilities and pregnancy

Additionally, almost every state or local sick leave mandate specifically addresses those types of policies, outright stating that employers who assign “points” against legally protected sick time are violating the law. 

While one could try writing a policy that says the point system doesn’t apply if an absence is due to a disability or is somehow protected, that can get very difficult for a manager to enforce. And, what’s more, that system being in place still puts the employee in a difficult situation where they’re even more scared to lose their job if they have a medical issue or any other protected reason for needing to be absent. It also creates circumstances where employees feel an obligation to inform their employer of confidential disability related issues in order to avoid points.

So, if you have an attendance point policy in place for your business, reach out to CEDR to see about having your handbook updated with compliant, customized policies that both fit your needs as a business owner and are in compliance with all employment laws that apply to your business.

In terms of this employee’s long-term attendance, instead of looking at the total number of points, take each absence individually and look at how it did or did not comply with your time-off and call-out procedures, as well as whether the reason for the absence would have some level of protection under federal, state, or local law.

Every situation involving excessive absences is unique. And, since this employee has already made the claim of a medical need for her absences, issuing corrective actions for poor attendance and/or going through the interactive process both require a delicate hand and a nuanced understanding of HR and employment laws to get right. If you were a CEDR Member, this would be a perfect scenario to work through with one of the highly qualified advisors in the Solution Center

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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.

At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.
 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

Jul 5, 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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