HR Alerts
November 15 Marks a Big Day in the Health Insurance Marketplaces
The Health Insurance Marketplaces (also known as the State Health Exchanges) will be opening on November 15 for individuals to enroll in non-employer sponsored plans for 2015. While employers are generally not greatly impacted by open enrollment for individual plans, there are a few reasons why employers may want to mark November 15 down on their calendars:
Window to enroll in a SHOP plan with less than 70% participation. Unlike individuals (who generally must sign up for a health plan during the 3 month open enrollment window), small businesses that wish to purchase insurance through the Small Business Health Plan Options Program (SHOP) exchange can usually enroll in any month. In order to be eligible to sign up for a SHOP plan year round, however, at least 70% of the employer’s full time employees must enroll in that SHOP plan. For small businesses that are not able to satisfy that requirement, November 15 marks the start of a one month window during which they can enroll in a SHOP plan with less than 70% participation of full time employees. We recommend that businesses considering a group health plan investigate their options now so they can take advantage of this window if there is any chance that they may be close to or under that 70% participation line.
Expected launch of online SHOP enrollment. While SHOP has been open since late 2013, the online option was delayed and is still not operational in most states. For the almost 3 dozen states using the federal government’s small business exchange, November 15 is the expected release date of the online portion of the program. As of that date, employers should be able to purchase group coverage on the computer rather than having to rely on paper forms. Many of the states running their own small business exchanges are also launching or improving their online systems, so we encourage you to learn about the options available in your state.
Understanding Employer Pay Obligations for Travel Time
For many employers, sending employees out into the big, wide world to perform their job duties is an everyday occurrence. However, many employers are not aware of the situational details that may make time compensable or not compensable for non-exempt employees. Employers must consider both state and federal law surrounding travel time pay and then apply the most generous policy to the employee.
Home-to-Work and Work-to-Home Travel – Employers are not obligated to pay an employee for their time spent commuting no matter how far away they live. If it’s part of their normal commuting time, it’s unpaid.
Worksite to Worksite Travel – If an employee must travel in order to accomplish the day’s work this time counts as paid time. This is common for service and maintenance employees.
One-Day Travel to Another City – Should an employee travel to and return from another city in a workday, that time counts as hours worked. However, the employer is not required to count the time that an employee would normally be commuting to their regular worksite.
Overnight Travel – When an employee travels overnight on company business, hours spent traveling over the employee’s normal work hours generally count as compensable time (no matter what day of the week the employee traveled on).
It is key for employers to understand that the obligation for keeping track of hours worked for a non-exempt employee lies with the employer under the Fair Labor Standards Act. Most employers will pass this duty off to their employees. That, however, does not release the employer from its duty. If an employer had reason to know that an employee was working though the time was not recorded, the employer is obligated to pay for that time actually spent working.
In order to avoid confusion and misunderstandings, we recommend having a written policy on travel time pay that is distributed it to employees. Employers may also safeguard themselves from preventable issues if they go over the policy with an employee prior to the employee embarking on company travel. If the employee will not have access to the company’s time clock system while traveling, employers should provide them with a timesheet to record their hours as they are worked.
In addition to travel time pay, many employers get hung up on the many details surrounding employee travel. Below are a few of those issues and what obligations an employer has to its employees.
Per Diem – Per diems are generally optional for employers. Travel time pay still applies when a per diem is provided.
Mileage Reimbursement – Employers who provide a mileage reimbursement for maintenance, wear and tear on an employee’s vehicle must also pay the employee for the travel time. We typically recommend the standard IRS rate, which is currently 56 cents per business mile driven.
Different Travel Time Rate – A different rate of pay for travel is allowed so long as the rate is not less than minimum wage. This should be clearly communicated in writing prior to the beginning of the travel.
Calculating Overtime – An employer must count travel hours when calculating overtime pay for a workweek.
Wage and hour problems occur when an employer isn’t familiar with their pay obligations for non-exempt travel time pay. Knowing that compensation for travel time depends on the kind of traveling the employee is doing and when the travel time takes place, can help an employer avoid expensive omissions from an employee’s pay.
Question & Answer
Question:
We have some employees who regularly converse in their native Spanish language. This creates an issue because other employees are worried they are being talked about but can’t understand it. How should we handle this?
Answer:
Employees have the right to use their own or preferred language in their personal conversations that occur in the workplace. Restrictions on foreign languages for personal workplace communications often result in claims of national origin discrimination. A lack of business justification for language restrictions will almost certainly be non-compliant.
The Civil Rights Act or Title VII permits employers to adopt English-only rules under limited certain circumstances. As with any other workplace policy, an English-only rule can only be adopted for nondiscriminatory reasons. An English-only rule would be prohibited if it were adopted with the intent to discriminate on the basis of national origin. A policy that prohibits some but not all foreign languages spoken in a workplace would also be unlawful. An employer can restrict language for regular communications with customers, coworkers, or supervisors who only speak English, for example, or in situations where workers must speak a common language to promote safety.
In this instance the employees may just be misunderstanding the context or subject conversation of the other employees having a personal conversation in Spanish. For these reasons, we recommend that employers handle the situation on a case by case basis rather than a general prohibition on language. If employees feel they are being harassed or bullied by others in another language it should be investigated and handled according to your policies. If a particular employee is being left out of work conversations then the matter may require additional investigation, mediation or constructive conversations with involved employees should be pursued.
Enforcing Rest and Meal Periods in Hectic Work Environments
Restaurants, coffee shops, hair salons, call centers, and customer focused offices often have “just enough” staffing on hand at any given time. Limited staffing makes it challenging to relieve an employee for a rest period or meal break. An employee who leaves the work area, even for a small amount of time often causes stress and increased workloads on his or her colleagues. This factor, though understandable, does not release an employer from providing mandatory rest periods and breaks to its employees.
Breaks and meal periods should, therefore, be scheduled in accordance with state law requirements; for example, some states require that employees receive a paid ten minute break for every four hour segment of work or an unpaid meal period of at least thirty minutes in duration after an employee works five consecutive hours. Other states require that employees under the age of 18 are provided with paid rest breaks or meal periods, but the laws do not apply to an employee who is over the age of 18.
If your state mandates paid rest breaks or meal periods, you may need to make staffing adjustments during break periods or have an employee who is a designated ‘floater’ to cover other employees while they take their required rest breaks and meal periods. Some employers achieve this by designating the senior management team to step in and cover employees’ work station while they are on their breaks. This will not only ensure that there is adequate customer coverage, but will help the management team ensure that employees are taking their rest breaks and meal periods as required.
Structuring the schedules and effectively communicating the requirement of the rest and meal periods to the management team and to employees will help promote that employees receive mandatory rest and meal periods. This will help ensure that the company’s practices are compliant with state laws.
