HR Hotline: How Do We Handle Paying an Employee for Time Spent in Physical Therapy Following a Work Injury?

Soycher-Mark_15By Mark Soycher
CBIA HR Counsel

Q: Do we have to pay an employee for physical therapy sessions outside regular work hours where the treatment is related to a work injury? If it bumps total hours paid over 40 for the week, does that mean it’s paid at an overtime rate?

A: Injured employees able to work and therefore not receiving or eligible to receive workers’ compensation wage replacement benefits should be paid at their normal rate for time spent receiving treatment, as if it was time lost from work. That rule holds whether the treatment occurs during or outside regular work hours. Treatment time includes necessary travel time to the place treatment is administered.

The phrase in the law (CGS 31-312), “paid…as if it was time lost from work,” establishes that it need not be treated the same as time actually worked. Because state and federal law requires overtime only when time actually worked exceeds 40 hours in a week, this extra time paid need not count toward overtime. Many employers seek reimbursement from their workers’ compensation insurer for these payments.

HR Hotline: Is the Paycheck Good Security for an Employee Loan?

Soycher-Mark_15By Mark Soycher
CBIA HR Counsel

Q: Occasionally we loan money to an employee or permit an employee to make a personal purchase on the company account, with the understanding that repayment will come in the form of a specified amount deducted from his or her weekly paycheck. What are our options if the employee quits or is discharged before repaying the debt?

A: If your company’s name includes the words bank and trust, credit union, savings and loan, or some other reference to financial services, and employees are permitted or encouraged to use the organization’s products or services, you should structure the relationships (employer-employee, creditor-debtor) so that each is independently managed under proper standards and will survive the termination of the other.

If you are not in financial services, approach employee loan arrangements with caution. Becoming a creditor of your employees adds another complicating element to the relationship if all is not going well. Nevertheless, loaning money to employees is a common practice, and repayment typically takes the form of deductions from periodic paychecks and/or a final paycheck.

In either case, you should be familiar with the state law (CGS 31-71e) that makes clear how deductions from employee paychecks should be handled in a variety of circumstances.

The relevant text of that law forbids withholding any portion of an employee’s paycheck “unless (1) the employer is required or empowered to do so by state or federal law, or (2) the employer has written authorization from the employee for deductions on a form approved by the [labor] commissioner, or (3) the deductions are authorized by the employee, in writing, for medical, surgical or hospital care or service…”

Your situation falls into the second scenario and requires the employee’s written permission on a form approved by the state Department of Labor. You might consider adding the following short statement to the form (taken from another form used to document repayment of vacation pay advances): “Allow the company to deduct any amount which I owe from my last paycheck and/or any future commission checks which may be due to me after the termination of my employment.”

Using a DOL-approved form will protect your right to recover your money from the employee’s paycheck(s). Without using an approved form, in the event of an employee complaint or labor department audit or investigation, you may have to reimburse the employee for unauthorized paycheck deductions and seek other means of reconciling the debt, such as small claims court.

Other common paycheck deductions, such as required payroll taxes under state and federal law (the first scenario above) don’t require employee authorization. In fact, you would find yourself in hot water if you didn’t make these deductions, regardless of the employee’s willingness.

Deductions for group insurance contributions (the third scenario above) must be authorized in writing but need not be documented on a DOL form.

HR Hotline: Can We Delegate Form I-9 Responsibilities to a Third Party?

Soycher-Mark_15By Mark Soycher
CBIA HR Counsel

Q: We occasionally have to hire employees who reside in a distant community and will be working remotely. If we don’t have a manager in the employee’s area to review documents and complete Immigration Form I-9, can we delegate that responsibility to someone else not employed by our company?

A: All U.S. employers are required to verify the identity and employment authorization of each person they hire. For each employee, they must complete and retain a federal Form I-9, Employment Eligibility Verification, indicating that they have:

  • Examined the employment eligibility and identity documents presented by the applicant or new hire
  • Determined whether the documents reasonably appear to be genuine and relate to the individual

By signing the form, employers attest under penalty of perjury that they have completed these tasks.

The Department of Homeland Security’s U.S. Immigration and Citizenship Services’ Handbook for Employers, Instructions for Completing Form I-9 (available here), clearly states that it is permissible to designate someone, such as a notary public, to perform these tasks on your behalf.

It’s important, however, to have a clear understanding of delegated responsibility and realize that if a problem arises, you as the employer are liable for any violations in connection with the form or verification process. You are also liable if an employee later turns out to be illegally employed.

If you designate an authorized representative to view a new hire’s employment authorization and identity documents, that person must carry out full Form I-9 responsibilities, including physically examining original documents in the presence of the applicant. In addition, the representative must sign Section 2 of Form I-9 as an attestation to their having examined the new hire’s documents and that in their judgment, such documents reasonably appear to be genuine and relate to the person presenting them.

You cannot contract for a third party to view the new hire’s documents while you complete Section 2 of Form I-9 yourself. Nor is it permissible for you to review copies (fax or scanned) of the documents as the basis for signing Section 2.

Recruiting and onboarding offsite workers is an area requiring careful adherence to the strict letter of Form I-9 procedure. For an unsettling saga of seeming good faith compliance efforts and aggressive government audit activity, click here. Although no ineligible workers were employed, the business in this case was liable for over $200,000 for multiple instances of failing to comply with the Form I-9 recordkeeping mandates.

An effective package for designating an authorized representative for completing new hires’ Form I-9 might include a copy of a blank Form I-9, a cover letter to the new hire with instructions on required documentation, how to complete Section 1 of the form, and how to contact the authorized representative who will complete the remainder of Form I-9.

You might also include an instruction letter to the authorized representative on how to complete the form.

In any event, the authorized representative should be someone you have worked with to ensure that the person is familiar with necessary documentation and procedures. Only in that way can you be certain that you will not end up liable for someone else’s mistakes.

HR Hotline: How Do I Correct Form I-9?

Soycher-Mark_15By Mark Soycher
CBIA HR Counsel

Q: What if I need to correct Form I-9, and what are the proper steps to take if I am missing a Form I-9?

A: If you discover a mistake on Form I-9, you may correct the existing form or prepare a new one. Employees should make corrections to Section 1, and employers should make corrections to Section 2 and 3. If you choose to correct an existing Form I-9, simply draw a line through the incorrect information. (Do not white out or black out any of the information.) Then enter the correct information, and initial and date the correction.

If you use a new Form I-9, keep the old form with the new one and attach a short memo to the new and old Form I-9 stating the reason for your action. It’s a good idea to conduct regular internal audits.

If you discover you are missing a Form I-9 for a current employee, immediately provide the employee with the most current version. Allow him or her three business days to provide acceptable documents. Do not backdate Form I-9 when you sign it. The hire date will still be the actual hire date.

HR Hotline: How Does the Location of Our Employees Affect Whether FMLA Applies to Us?

By Mark Soycher
CBIA HR Counsel

Q: We have more than 50 employees nationwide, but based on their distribution at various regional offices, no one facility has 50 employees working within 75 miles of that worksite. Does the federal FMLA apply to us?

A: It’s likely that your company is subject to the law, but also that none of your employees is entitled to FMLA job-protected leave. Let me explain.

In determining whether or not your company has 50 or more employees and is therefore covered by the federal FMLA, you must count all employees regardless of location: full-time, part-time, and remote workers in home or corporate offices. Next, you need to assess whether a specific employee is entitled to FMLA protections based on:

  • The reason leave is needed (must be an FMLA qualifying reason)
  • The employee’s length of service (must have at least one year of employment with your company)
  • The number of hours the employee worked in the past year (must be at least 1,250 hours worked)
  • Work location (must be working at a location where there are at least 50 employees working within 75 miles of that worksite)

In your case, it appears this last element is not met, so you have a situation where your company is subject to the FMLA, but no individual worker is entitled to FMLA leave because of the geographic distribution of the workforce.

You still must display at all worksites the U.S. Department of Labor poster, WHD Publication 1420 (available in CBIA’s Poster Compliance Kit), notifying all employees that they work for an FMLA-covered employer.

Upon a request from an employee or your learning that an employee is in need of time off that might be FMLA qualifying, you must respond with the U.S. Department of Labor Form WH-381, Notice of Rights and Responsibilities, and check off on the first page the section indicating that the employee is “not eligible for FMLA leave because he or she does not work and/or report to a site with 50 or more employees within 75 miles.”

HR Hotline: Does a Reduced Headcount Mean Reduced FMLA Obligations?

By Mark Soycher
CBIA HR Counsel

Q: An employee requested and was approved for FMLA qualifying leave. But after he was out for six weeks, we closed a facility, with the result that he no longer works at a site with 50 or more employees within 75 miles. Does that mean his leave is no longer FMLA qualifying and his job is no longer guaranteed?

A: No. Employee eligibility for FMLA job protections is determined at the time FMLA leave is requested.
A subsequent change in a company’s situation—such as a reduction in the number of employees or a change in the geographic distribution of the workforce—would not interrupt or curtail the FMLA leave rights of an eligible employee for the particular leave circumstance previously requested.

If an FMLA leave period is less than 12 weeks, however, leave requested for a new reason at some future date when the employer is no longer covered—for example, because of an insufficient number of employees—could be denied.

The Code of Federal Regulations’ FMLA provisions contain a reference that appears to directly address this issue. Section 29 CFR Sec. 25.110(e) defines an “eligible employee” this way:

“Whether 50 employees are employed within 75 miles to ascertain an employee’s eligibility for FMLA benefits is determined when the employee gives notice of the need for leave.

“Whether the leave is to be taken at one time or on an intermittent or reduced leave schedule basis, once an employee is determined eligible in response to that notice of the need for leave, the employee’s eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee’s worksite, for that specific notice of the need for leave.

“Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.”

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Does Our Workplace No-Weapons Policy Supersede a State Permit to Carry a Gun?

By Mark Soycher
CBIA HR Counsel

Q: An employee presented me with a copy of his state permit to carry a handgun, stating he’d like to carry a gun while working on company premises. His job does not place him in an unsafe environment, nor is he responsible for valuable property or cash where his security or that of company property is at risk. Does our policy prohibiting weapons at work supersede his right under state law to carry a weapon?

A: Employers in Connecticut have the authority to restrict or prohibit employees from carrying weapons on the job or bringing weapons to the workplace even if the worker has a state permit to carry a gun. Connecticut General Statutes Sec. 29-28(e) states the following:

“The issuance of any permit to carry a pistol or revolver does not thereby authorize the possession or carrying of a pistol or revolver in any premises where the possession or carrying of a pistol or revolver is otherwise prohibited by law or is prohibited by the person who owns or exercises control over such premises.”

Nationally, this has been an issue of ongoing debate, with some states passing laws that restrict an employer’s right to ban weapons at work. The Connecticut legislature has not passed such a law and does not appear to be considering moving in this direction.

If you are interested in receiving an article discussing the status of this issue across the country or a sample policy addressing weapons on company premises, call CBIA’s HR Hotline at 860.244.1900 or email mark.soycher@cbia.com.

HR Hotline: Can We Keep Debt Collectors from Calling Employees at Work?

By Mark Soycher
CBIA HR Counsel

Q: One of our employees has been receiving calls at work several times per week from a debt collector, some directly to the employee, some transferred by the receptionist to our HR manager. Must we pass such calls to our employees? Can we tell the caller not to contact our employee at work?

A: State law requires employers to notify employees of incoming emergency calls involving a serious injury, illness, or the death of an immediate family member. Beyond that, employers are not obligated to interrupt employees at work with other types of calls, including collection calls.

Keep in mind, however, that this does not diminish an employer’s obligation to implement a properly (legally) served wage execution arising from an employee’s failure to pay attention to his or her creditors. In fact, a company could be on the hook for the debt payments if it ignores the law’s mandate that certain wage garnishments be implemented in a timely manner.

Also note that it is illegal to subject an employee to disciplinary action because of wage executions unless the employer is served with more than seven wage executions on that employee in a calendar year.

Although it is permissible for you to inform a debt collector that you will not pass along collection calls to your employee and that you do not want such calls placed to your company, that alone may not end unwanted calls from a persistent collector.

Your employee, however, does have the ability to prevent such calls. The federal Fair Debt Collection Practices Act requires that debt collectors treat debtors fairly, and it prohibits certain methods of debt collection, including phone calls at inconvenient times or places, such as before 8 a.m. or after 9 p.m. The federal law also prohibits a debt collector from contacting a debtor at work once notified by the debtor that his or her employer disapproves of such contacts.

If your employee advises a collector in writing to refrain from contacting him or her at work because you object, the collector can no longer place such calls, other than to say there will be no further contact or to notify the debtor that the creditor intends to take some specific action, such as filing suit. Your employee should understand that this strategy does not erase any legitimate debt that is owed, and it may result in further legal action to recover on the debt, but it should eliminate any further disruptive calls at your workplace.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? CBIA Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Are We Obligated to Pay Part-Timers During Jury Duty?

By Mark Soycher
CBIA HR Counsel

Q: A part-time employee has been called to jury duty. Are we obligated to pay her for the time served as a juror?

A: The law does not require that part-time workers be paid while on jury duty. However, Connecticut’s “one-day, one-trial” jury service law requires that all full-time employed jurors be paid regular wages for the first five days of jury service.

A “full-time employed juror” is an employee who holds a position that requires thirty hours or more of service in each week that is neither temporary nor casual. A full-time employed juror also includes an employee holding a position through a temp service that normally requires 30 or more hours of service per week and who has been working in that position for more than 90 days.

A person is considered a full-time employed juror on any day of jury service in which he or she would have earned regular wages if not for serving jury duty that day, or would have worked at least one-half of a shift that extends into another day if not for serving jury duty.

If jury service extends beyond five days, the state judicial system provides the employee/juror $50 per day, and no additional wages are owed by the employer for such days. Job-protected time off, however, is still required for the remainder of jury service.

Any juror who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day’s work, and an employer may not require the juror/employee to work additional hours that day. A juror excused from jury service after less than eight hours’ jury duty may be required to report to work for the remainder of the scheduled workday in order to receive full pay for that day.

More information

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Do Part-Timers Have Full Reinstatement Protection Under USERRA?

By Mark Soycher
CBIA HR Counsel

Q: A part-time, temporary employee left for active military duty before completing his six-month probationary period at our company. He is now seeking reemployment after completing a period of active duty that lasted for just over a year. Does the law require rehiring a former part-time, temporary, probationary employee upon completion of military service?

A: Yes. The Uniformed Service Employment and Reemployment Rights Act (USERRA) applies to part-time, temporary, and even probationary employees, requiring reinstatement in almost all cases.

Keep in mind that an employee leaving for active military duty does not separate from employment, making rehiring unnecessary. Instead, the employee should be deemed on a leave of absence, with clearly established rights to reinstatement.

There are fairly narrow circumstances in which reinstatement is not required—for example, where the pre-service position is brief or for a nonrecurrent period and there is no reasonable expectation that employment would continue indefinitely or for a significant period. In such cases, the employer has the burden of showing the uncertainty of a continuing job opportunity.

Your situation is one of many examples of the value of a job offer letter to accurately characterize terms of employment or job status in a timely manner. Another possible case where reinstating a returning vet is not required occurs when an employer’s circumstances have changed so that reemployment would be impossible or unreasonable—for example, a reduction-in-force that would have included the vet.

In any event, under USERRA, the general standard is that it is unlawful for an employer to deny an individual “retention in employment” because of his or her membership in a uniformed service or performance of uniformed service. USERRA further specifies that the reinstated vet may not be discharged without cause for six to 12 months, depending on the length of the military service period.

Returning vets are entitled to be reinstated in the position they would have attained had they been continuously employed (usually, but not always, in the position held prior to commencing leave). If the period of military service was 91 days or more, the employer does have some additional flexibility and may reinstate the vet in an alternate position for which he or she is qualified, as long as it provides like seniority, status, and pay.

During an employee’s absence for active duty, employers are permitted to hire a replacement. However, the returning employee is entitled to reemployment upon completion of the military service, even if it requires termination of the replacement.

If you need additional help, the Connecticut Office of the Employer Support of the Guard and Reserve (ESGR) is a free resource for employers and service members, providing education, promoting USERRA compliance, and assisting in resolving conflicts.

Do you have questions related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? CBIA members can get free information by calling 860.244.1900.