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Twice a year SHRM puts out its bookstore catalog. The subject matter relates to benefits, hiring, retention, team work, motivation, employee relations, global HR, health and safety, wellness, diversity, compliance, and so on. There are articles on HR competencies, HR strategies, HR benchmarks, HR scorecards, and other forms of measurement. We could go on, but the point is this: In order to be a good, maybe even great, HR executive must engage in constant learning. We encourage HR That Works members to look at the Special Report series, as well as the Strategic HR Tools that are easily downloadable from the site.

We also recommend you download the MP3s of the newsletters and webinars so you can listen to them in your car.

If you decide to go it alone, this checklist provides a road map that will help to protect against some of today’s most common employee lawsuits. HR That Works Users can access this form in Word format by logging on to the site.

A recent opinion letter from the U.S. Department of Labor (DOL) addressed the issues of missed meal breaks, overtime, and rounding off time under the Fair Labor Standards Act (FLSA). In responding to an employer’s questions about its break and meal policy, the DOL offered these guidelines:

• No additional compensation is due if an employee misses an unpaid meal break but still works fewer than 40 hours in the workweek, as long as “the employee’s total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.”
• If an employee works more than 40 hours as a result of missing an unpaid meal break, the time worked during the missed meal break must be counted for purposes of determining overtime pay. As the DOL observed, “Before an employee can be said to be paid statutory overtime compensation due, the employee must first be paid all straight time wages due for all hours worked … ”
• If an employee begins work before or finishes after their regularly scheduled hours but works less than 40 hours in the workweek, the employee is not entitled to additional compensation as long as “the employee’s total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.”
• If an employee receives certain types of overtime premium pay (e.g., for work in excess of specified daily or weekly work periods, or for working certain special days), the extra compensation does not need to be included in the employee’s regular rate of pay for purposes of calculating overtime pay. Furthermore, the extra compensation may be credited toward any required overtime payments.
• An employer may round off time to the nearest five minutes, tenth of an hour, or even quarter of an hour, as long as over a period of time the employee is compensated properly for all time actually worked.

The DOL uses its Web site to publish these opinion letters, which offer the department’s interpretation of the FLSA on particular situations. We expect this opinion letter to appear there soon.

Download a PDF version of the letter here.

(Courtesy of Shaw and Rosenthal of the Worklaw® Network)

According to a recent article in Lawyers USA, discrimination charges filed with the EEOC increased 9% during the past year. The commission reviewed more than 4,000 retaliation charges seen by the EEOC in 2007, an increase of 18%. Race is the most popular complaint filed, with retaliation being the second. Race, age, disability, and pregnancy charges all increased significantly. Although experts can’t explain these increases, there have been numerous reductions-in-force, together with heightened employee awareness about discrimination. Finally, the EEOC announced that it recovered approximately $345 million in monetary relief, up 26% from the previous year. Don’t wait until you get sued to investigate EEOC problems. To get an investigation right, please see the Form of the Month.

Last month we asked “What do you really want from HR”? This month we examine a recent SHRM survey that generated the report, “2008 Managing Your HR Career Survey.” The key findings should come as no surprise:

• The most important factor in HR success is the ability to communicate. The HR executive is often viewed as the point person between the executives and the rank and file. Interpersonal communication skills are essential when it comes to leading strategic initiatives, as well as avoiding employee drama.
• Having driving ambition was cited as the second most important factor (61%). In the real world, many HR people aren’t highly motivated or ambitious, partly because they don’t feel they will have upper-level support or get paid for making a difference. One of the greatest challenges for business owners and executives is to light a fire under the HR department.
• The third tier of importance includes reputation in the organization, strategic/critical thinking skills, experience, and leadership skills. Of course, the most important aspect of your reputation is the ability to be trusted because you have the skills and character that people can trust. Strategic or critical thinking skills are also important whether you’re at a workforce with 1,000 employees or only 25, and you’re wearing three hats, one of which is HR. HR That Works users are encouraged to look at the Strategic HR Tools portion of the Web site. Of course, experience is only important if it produces results. Ask yourself: What have you done differently over the last week to improve your HR career or department? What result has it generated?
• Finally, there’s the general concept of leadership. In our experience, most owners and executives want HR folks to grab the bull by the horns. Don’t wait to be told what to do, just start doing it! Our favorite example of an HR executive with tremendous leadership skills is Colleen Barrett, the CEO of Southwest Airlines.

The HR field offers enormous opportunity. This is the least developed aspect of many organizations and has been gaining professional status during the last 10 years. We encourage every HR executive to really go for it — and make sure you have fun and get paid in the process!

Under many Workers Comp systems, once an employee has reached a light duty, permanent, and stationary phase, the employer will often have the opportunity to provide them with modified work, alternative work, or ultimately, vocational rehabilitation. Many employers will gloss over the concurrent obligation to engage in a good faith interactive process with the employee to determine effective reasonable accommodations under the ADA — to do the job they were hired for!

So, for example, although they may limit the employee’s ability to return to work until 100% fit for duty under Workers Comp, this is not the law under the ADA. For example, if a worker is 85% fit for duty, you have to search out a reasonable accommodation that might allow them to be 100% effective. In too many cases, the employer simply evaluates the modified alternative work option without engaging in a dialogue with the employee to do the job they were hired for.

We encourage HR That Works users to look at the Training Module: Managing Employees Who Can’t or Won’t Come to Work, which discusses the intersection of work comp light duty, the FMLA, and ADA.

The U.S. Department of Labor recently issued an opinion letter on the exempt status of a purchasing agent and whether they qualify for the administrative exemption under the FLSA. The letter held that these employees are, in fact, exempt. Remember, in order to be an exempt, an administrative employee must be paid at least $455 per week, perform work “directly related to the management or general business operations of the employer,” and “includes the exercise of discretion and independent judgment with respect to matters of significance.” In analyzing purchasing agents, the letter indicated that they definitely work in the performance of management or general business operations and they exercise discretion and independent judgment. These PAs have the authority to place purchase orders less than $25,000 without management approval.

The company requesting this opinion letter now has the comfort of knowing that they’re doing things properly. Opinion letters are usually forwarded by a company’s attorneys. If you ever seek such an opinion letter, please contact one of the members at the Worklaw® Network.

Read the opinion letter here.

Human resource executives feel that many employees abuse FMLA leave. As with many types of absences, the facts or excuses provided defy logic. Employees will seek FMLA leave for concerns far from “serious.” Hangovers, colds, and sore backs don’t count. The healthcare provider is often lackadaisical about any medical certification and will simply ask an employee how much time off they want.

Here’s the point: There’s a lot of abuse in the system and HR executives should not take employee requests on face value. If you don’t feel the medical certification (which should always be required) is accurate, you may request clarification. In fact, recent amendments to the FMLA will allow you to contact their healthcare provider directly.

Many HR folks don’t contest or further examine requests for leave either because they’re intimidated by the medical certification process or they don’t want to be viewed as someone who doesn’t care. Neither justification will do. The recent case of Taylor & Taylor v. Ameritech Services points out just how difficult it can be to rein in employee abuse of FMLA leave. In this case, the court granted a summary judgment for Ameritech against FMLA claims brought by a couple who failed to deliver their certifications in a proper and timely fashion and then to cure any deficiencies in them. It’s a relatively short read that’s well worth your time to understand how the court views medical certifications.

Some of the points made in the case are:

• “While a company is not permitted to interfere with the ability to obtain a medical certification, a constant extending of the submittal deadline is not required of the employer. As stated, all the employer is required to do is provide the employee with a ‘reasonable opportunity’ to cure the deficiency; no more was required.”
• “Employers may also require that completed certifications be faxed or mailed by the doctor rather than permitting the applicant to do the sending.”
• “Nothing in the statute forbids an employer to adopt reasonable, non-burdensome measures for preventing fraud.”