Interviewing:

Don’ts (What you can’t know about candidates)
Race
Religion
Sex or Sexual Orientation
Age including high school graduation date
Ancestry or National Origin (asking if they are eligible to work in the USA is ok)
Marital Status
Parental Status
Arrests
Military service (what branch they were in)
Height or Weight
Political preference or membership in social organizations
Handicaps or disabilities
If they have applied or received Workers Compensation
Ownership of home or vehicle
Maiden name
Where applicant or parents were born

Records to be kept

Due to the amount of possible paper work,
this is only a partial list

3 Years
Payroll Records
Certificates, Agreements, Plans, Notices, etc.
Individual, Collective Bargaining, Agreements
Written Agreements
Sales and Purchase Records

2 Years
Basic Employment and Earnings Records
Wage Rate Tables
Order, Shipping, and Billing Records
Records of Additions and Deductions from pay
All Records of Costs.

1 Year
(after employee leaves or hire date which ever is later)
I-9

Hourly or Salary?

There are six (6) different categories to determine if a person should be salary. A good rule of thumb is if more than 2% of your employees (depending on your industry) are salary you may want to revisit job descriptions. It is always safer to have an employee as hourly if the position is questionable.
Must meet all of the criteria in each employee category.

Executive Employees
Compensated on a salary basis at a rate of not less than $455 per week; exclusive of board, lodging or other facilities.
Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department.
Who customarily and regularly directs the work of two or more other employees. AND
Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Highly Compensated (may be exempt if)
Annual compensation of at least $100,000; AND
Regularly perform one or more of the exempt duties of executive, administrative, or professional.

Administrative Employees
Compensated on a salary basis at a rate of not less than $455 per week; exclusive of board, lodging or other facilities.
Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers;
Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Professional Employees
Compensated on a salary basis at a rate of not less than $455 per week; exclusive of board, lodging or other facilities.
Whose primary duty is the performance of work:
Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Examples would be an actor, nurse, teachers, etc.

Computer Employees
Compensated on a salary basis at a rate of not less than $455 per week; exclusive of board, lodging or other facilities.
exemption applies to any computer employee compensated on an hourly basis at a rate not less than $27.63 an hour.
The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications.
The design, documentation, testing, creation or modification of computer programs related to machine operating systems.
A combination of the aforementioned duties, the performance of which requires the same level of skills.

Outside Sales Employees
Whose primary duty is making sales as defined by the act or obtaining orders or contracts for services for the use of facilities for which a consideration will be paid by the client or customer; and
Who is customarily and regularly engaged away from the employer’s place or places of business while performing such primary duty.

Fair Labor Standards Act

Qualifying Employers
Effective 1938 covers most employers. Establishes minimum wage, overtime pay, recordkeeping, and child labor standards.

Minimum Wage
Effective July 24, 2008 minimum wage is $6.55/hr.
Effective July 24, 2009 minimum wage is $7.25/hr.
Tipped employees wage rate is $2.13/hour (employees receiving more than $30/month in tips).
If your state, county, or city minimum wage is higher, then the higher minimum wage must be paid.

Tipped employee note!
If the hourly wage and tips combined DO NOT equal the minimum wage, the employer must make up the difference.

Dos
Employees are entitled to time and one half for all hours worked over 40 hours. (example: John works 45 hours this week. 5 x 1.5 = 7.5, and
47.5 x $7.25 = $344.40).
Breaks of less than 20 minutes are to be paid.

Don’ts
Withhold wages for shortages, presumed negligence, breakage, incompetence, or inability, etc. if it reduces wages below minimum wage.
Withhold for uniforms if it reduces wages below the minimum wage.
If payroll is bi-weekly, overtime is still based on a weekly basis.
Allow employees to perform any work related activity during an unpaid break.
Compensation Time or “Comp. Time” is not permitted. Employees must be paid.
Round off time worked.
FLSA does not require:
Vacation, holiday, severance, or sick pay.
Meal or rest periods (if over 18).
Holidays off, or vacations.
Premium pay for weekend or holiday work.
Pay raises or fringe benefits.
A discharge notice, reason for discharge, or immediate payment of final wages to terminated employees. (some states do require immediate payment)

Family Medical Leave Act

Qualifying Employers
Effective 1993 employers with 50 or more employees or 50 or more employees within a 75 mile radius.

Definition
Grants to qualified employees the right to unpaid leave for specified family or health-related reasons without the fear of losing their jobs.
Employer Duties

Qualifications
Employee must have worked 1250 hours during the past year.
Employee must have been employed 12 months or 365 days.
Military time counts toward FMLA
Military active or impending active duty of a Spouse, child or parent is eligible for 12 weeks. (26 wks. To care for service member)
Employee should give 30 day notice unless for unforeseen circumstances (example: auto accident).
Employee must provide a fitness for duty report in order to return to work.
Employee may take leave for the following
person (s)

Self Spouse
Child
(newborn, adopted, foster) Brother or sister (not in-laws)
Parents (not in-laws)

Qualified employees are entitled to twelve (12) weeks of unpaid time off. The twelve weeks may be taken in one hour increments.
Leave is protected and can not be held against the employee. (promotions, raises, evaluations, etc. must continue as though the employee were there).
May request medical certification. If not satisfied the employer may request second opinion at employers cost. A third opinion is binding.
If an employee is out for more than three (3) days FMLA documents should be sent to the employee. (Example: employee works Monday – Friday and calls off Friday and Monday documents should be sent.)
Health insurance must be maintained by the employer.
Upon return the employee must be restored to original or equivalent position with same pay, benefits, etc.
Leave can not result in the loss of any benefit accrued prior to the leave being taken.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Qualifying Employers
Effective 1985 employers with 20 or more employees on any given workday in the preceding year who offers a health plan.

Terms
Qualified Beneficiary: which is defined as an employee, spouse, or dependent child.
Qualifying Event: circumstance which results in loss of health plan coverage.

Examples of a qualifying event:
Termination
Resignation
Divorce or separation
Death
Reduction of hours
Eligibility for Medicare benefits
Child is no longer a dependent

Notes
COBRA is a very serious legal issue. This is just a brief overview of some information. ALWAYS check with your plan administrator or human resource department for any other information.
This section is only to help management answer an employees simple questions. Should an employee have other questions, refer them to either human resources or the plan administrator.

Definition
Requires that employers offer continuation health care coverage to plan participants and certain family members for 18 or 36 months at group rates.

Facts
Notify qualifying beneficiary’s when first covered by plan.
Notify qualifying beneficiary’s of qualifying event.
Employee must notify administrator of family status change within 60 days of the change.
Participants have 60 days to elect coverage.
Administrator has 14 days to notify participant of the qualifying event.
Each qualifying beneficiary is entitled to separate COBRA elections.
An administrative fee of up 2% may be added to the premium.

Pregnancy Discrimination Act

Qualifying Employers
Effective 1978 employers with 15 or more employees (including part-time) working 20 or more calendar weeks during the calendar year.

Definition
Employers are to regard pregnancy as a medical condition and offer same benefits and leave policies.