Many employees are surprised to learn that there is no Texas lunch law. Nor is there any federal law that an employer must provide meal breaks for employees in general industry.

It is completely lawful for a Texas employer to require employees to work for 8, 10 or even 16 hours per day without a meal break. It is not a recommended Human Resources practice, but there is no law against it.

The best practice in HR is for employers to give workers a 30-minute unpaid meal break, and one or two paid 10- to 15-minute rest breaks, on an 8 hour shift. These breaks have been shown to improve productivity. That is, employees who take regular breaks actually accomplish more during the workday than other employees. This is true, even when the paid rest breaks are counted as work time. However, there is no Texas lunch law that requires employers to grant such breaks.

Federal agencies like the US. Department of Transportation require meal breaks for workers in some occupations, such as airline pilots or interstate truck drivers. However, these breaks are more a matter of public safety than employee rights.

OSHA federal worker safety regulations require that employees be permitted to use the restroom when nature calls, but they do not require any rest or meal breaks.

Nineteen U.S. states from California to Maine have laws that require meal breaks for almost every employee – but Texas does not. States with meal break laws include Illinois, Colorado, Connecticut, Kentucky, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, Tennessee, Washington and West Virginia.

While there is no Texas lunch break law, an employer can require that any Texas worker take a meal break. Any employer can establish a mandatory meal break policy and require employees to clock out for a 30 or 60 minute meal break on every shift. This is a very common way for Texas employers to save payroll dollars. Any employee who does not comply with this policy can be disciplined or terminated.

An Indiana business owner wants to know, “Can I grant comp time to workers instead of paying overtime?”

Across the state, an employee writes, “I was just recently hired in an hourly job. My new employer very graciously agreed to give me two weeks of unpaid vacation, to take a long-planned trip. I’d like to work extra hours the week before and after, to make up the lost wages. Can I do this without being paid overtime?”

The answer in both cases is “No!”

“Comp time” is paid time off in lieu of paid overtime. It is very common for government agencies and some non-profits to grant “comp time” – but it is completely unlawful for private employers to use this tactic to avoid overtime payments to workers.

Under federal law, hourly employees must be paid overtime when they work more than 40 hours in the payroll week. The employer cannot grant an employee time off in a different payroll week, instead of paying overtime. Nor can the employer average the worker’s hours over two payroll weeks – even if they are in the same payroll period.

Example: Ted works in a commercial bakery. His employer pays every two weeks. The first week of the payroll period, Ted works 50 hours. The next week, Ted works just 25 hours and takes 15 hours of “comp time.” The employer wants to pay Ted for 40 hours each week. This is illegal.

Under the federal FLSA or Fair Labor Standards Act, when an employee works 50 hours in a payroll week, she must be paid for 40 hours of straight time and 10 hours of overtime. Overtime is always figured at 1.5 times the employee’s average rate of pay for that payroll week.

Because overtime hours are calculated by the payroll week, if an employee takes time off during the same payroll week, that reduces overtime. This is a very common way to control overtime and payroll expenses. An employee who works 5 extra hours on Monday may be asked to go home 5 hours early on Tuesday. As long as Monday and Tuesday are in the same payroll week, this is a lawful way to reduce or eliminate overtime.

The U.S. Department of Labor recently identified a major problem with child labor in the agriculture industry in Georgia and across the nation. 

While many think of this issue in conjunction with sweatshops in Asia, there is a very real Georgia child labor problem. 

Under the federal FLSA or Fair Labor Standards Act, children under 12 cannot work in any capacity, including in agriculture. A few loopholes permit some exceptions to the law, as when a child works for their parent on the family farm.

Yet, a recent undercover investigation by graduate students showed that this law was regularly being violated, with children as young as 6 working alongside their parents in the fields, harvesting crops.

According to investigators, child labor is used most often to pick small fruits and vegetables, such as blueberries, strawberries and grape tomatoes. The children’s tiny fingers and dexterity enable them to quickly harvest such crops with less bruising of the fruit.

There are several major concerns about using children for such labor. The majority of children are the offspring of migrant laborers. Working in the fields keeps them out of school. The lack of education creates a cycle of poverty where the parents cannot find any other job, and must put the children to work simply to earn enough to live.

According to healthcare experts, children working in farm fields are exposed to high levels of pesticides and herbicides, which often cause rashes, respiratory problems, asthma, and other ongoing health problems.

The children’s normal social and psychological development is also delayed, because they don’t have the opportunity to play or interact with other children.

One U.S. Department of Labor attorney thinks even the current Georgia child labor laws are inadequate. “We don’t let 13-year-olds work in factories,” he notes. “Why should we let them work in the fields?”

Many employees in Michigan have questions about hostile work environments.

The hostile work environment is one of the most misunderstood concepts in Human Resources. This is partly because it is regularly misused in the popular media, including sitcoms like The Office, starring comedian Steve Carell.

No matter how badly an employer or coworker behaves, obnoxious behavior alone does not constitute a hostile work environment. Under the legal definition, a hostile work environment exists when two conditions are met:

1. The employee is the target of negative behavior at work from coworkers, supervisors or others due to the employee’s race, color, sex, age (between 40 and 70), disability, pregnancy, national ancestry or religion.
2. The employer is aware of the negative behavior but takes no steps to eliminate the negative behavior – creating a hostile work environment for employees in that protected group. 

What are some examples of a hostile work environment? What actions can an employee take if a hostile work environment exists? Consider these situations:

• Jane’s employer is a micro-manager who regularly screams, yells, throws papers into the air and berates employees of every age, race and sex. Jane consults a close friend in HR, wanting to know if her boss’s actions constitute a hostile work environment.
• Ted’s employer has taken a personal dislike to him. Although Ted considers his performance average, he is prone to errors in his work. Last month, he made a purchasing mistake that cost the company $7,322. Ted’s boss constantly nitpicks and finds fault with his performance. Ted is constantly afraid that he will be fired.

Neither of these situations is a hostile work environment. Jane’s boss is a jerk, and possibly a poor manager, but his actions do not target employees in any one protected group, so they do not meet the legal test for a hostile work environment in Michigan.

Ted’s employer has singled Ted out for what she perceives as poor work performance – not his race, color, sex or religion.

The EEOC enforces federal laws prohibiting illegal discrimination, including a hostile work environment. Recent suits won by the EEOC include:

• An executive chef at a hotel in Lisle, Illinois who regularly referred to Hispanic employees as “dumb Mexicans” and “wetbacks.” The EEOC found that these statements created a hostile work environment for Hispanic employees, based on national ancestry, race, or both. 
• A Pennsylvania bakery recently settled a hostile work environment case involving an African-American worker. The employee was subjected to repeated racial slurs by other workers, including the n-word. Despite the employee’s complaints to management, the slurs continued.

In each of these cases, the companies ended up paying more than $1 million per worker for allowing a hostile work environment to continue.   

The Fair Labor Standards Act (FLSA), a federal law, mandates that employees who work more than 40 hours on one work week are entitled to overtime pay. The rate for overtime is 1.5 times the employee’s usual hourly rate. There are occupations that are exempt from overtime, including salaried employees.

For this reason Mississippi employers usually assume that a salaried employee is ineligible for overtime pay.

FLSA, however, doesn’t exempt all salaried employees from overtime. Instead, they classify these workers into two groups: salaried exempt (ineligible for overtime) and salaried non-exempt (eligible for overtime for over 40 hours or work in one week.)

Determining which salaried employees are exempt and which are not can be difficult. More than one factor is involved in the classification, which can be confusing. There are, however, general guidelines for employers to follow.

The first cutoff point for being considered salaried exempt is weekly earnings. An employee who makes less than $455 per week, regardless of his or her occupation, is always eligible for overtime. Those who make over $455 per week are exempt or non-exempt depending on their occupations.

The FLSA allows employers to exempt certain occupations from overtime. These occupations include, executives, professionals with advanced degrees, outside salespeople, highly-paid computer personnel, administrative employees and workers who earn over $100,000 per year for non-manual labor.

Within these occupations, there are further definitions and guidelines:

• Executives must manage the duties of more than two other people. Giving someone the title of “manager” doesn’t immediately place them into the executive category.
• Professionals with advanced degrees have advanced knowledge, such as emergency room physicians. Creative professionals, like artists and sculptors, also fall into this category
• Administrative employees can be considered exempt only if they have the power to exercise their own judgment in important decisions. For example the executive assistant who chooses which vendors to use for purchasing office supplies would be salary exempt.

Some states have established their own overtime laws. It is possible for an employee to be exempt under federal law, but eligible under state law.

In a recent year, the U.S. Department of Labor recovered over $25 billion in employee benefit funds. These funds had been misappropriated by employers to help solve cash flow problems and for company officers to treat themselves to new cars, houses and even race horses. Unfortunately, the amount recovered is only about 25% of the monies taken. Some employees got all their money back, but many only received a small part of their investment.

These cases were prosecuted as violations of ERISA (Employment Retirement Income Security Act of 1974). This federal law applies to Federal employees and workers across the nation. ERISA sets the minimum standards for most of the health and pension plans voluntarily established by private industry, and protects the individuals in those plans.

The Employee Benefits Security Administration (EBSA) is responsible for enforcing ERISA. If an employee suspects their funds are being misappropriated, they should immediately contact EBSA at 866-444-3272.

For example, suppose Shirley contributes to a 401k offered by her employer. The deductions show up on her paycheck every pay period, but have never shown up as deposits on her 401k statement. It’s possible that Shirley’s employer has misappropriated her 401k funds. She needs to report this problem to EBSA as soon as possible.

In addition to the federal administration, Shirley can also contact her state’s Department of Labor. Several states have laws on their books that force employers to adhere to all promises made regarding employee benefits. These cases are usually handled by the Wage and Hour Division, but the name often varies among states.

ERISA covers the majority of plans, but not all. If a government entity sets up or maintains a health or pension plan, that program is exempt from ERISA. Plans established by churches for their workers, programs maintained outside the United States for the benefit of nonresident aliens, and unfunded excess benefit plans aren’t covered either. ERISA also doesn’t apply to monies set aside for the sole purpose of complying with disability, workers compensation or unemployment laws.

The majority of the health and pension plans established by private industry are covered under ERISA (Employment Retirement Income Security Act of 1974). This law applies to employees in New Hampshire and across the country. ERISA was enacted to set minimum standards for health and pension plans, including 401k plans, and to protect the employees in these plans.

The Employment Benefits Security Administration (EBSA) was established to enforce ERISA, and can be contacted at 866-444-3272. If an employee suspects his or her funds are being misused, he or she should phone the EBSA as quickly as possible. The sooner the problem is reported, the better the chances of recovering the money.

Some New Hampshire employers ask what actions could indicate that their funds are being misappropriated.

To illustrate, suppose New Hampshire employee Bob Miller enrolls in the 401k plan offered by his employer. His contributions are regularly deducted from his paycheck, but he never sees these contributions on his 401k statement. It is possible Bob’s employer is misappropriating money from Bob’s 401k account.

Bob must quickly contact the EBSA. He can also check with his state’s Department of Labor. There are some states with laws that mandate all employers make good on promises made regarding employee benefits.

Unfortunately, EBSA receives a lot of these types of calls. In 2006, over $25 billion in employee benefit funds was recovered by the U.S. Department of Labor. A lot of these funds were used by company officers for their own personal use. Some employers misappropriated the money to stem the tide of poor cash flow, but others spent the money on houses, condos, cars and jewelry.

In one case of note, a union in California used employee benefit funds to renovate the union-owned golf course.

What makes the situation worse is that the $25 billion represents only a fraction of the funds that were taken. According to some estimates the recovered money makes up a mere fourth of what the employers misappropriated.

Several federal laws and court cases mandate that an employee’s personal data be kept confidential. This data includes age, race, gender, country of origin, religion, color, medical condition and disability status. Federal law requires employers to keep disability information separate from the employee personnel files, and to keep it locked up.

To address this issue, West Virginia uses the “two-lock” system. With this method, confidential files are placed into a locked filing cabinet inside a locked room. This method is safe, and common with employers.

Neither West Virginia law nor federal law stipulates exactly how a lock system should work. Employers are mandated to do “whatever it takes” to protect the employee’s privileged information. The number of “locks” or levels of security required to comply with the federal law depends entirely on the employer. Whether two locks or ten locks are required, companies must do what’s necessary to keep the date confidential.

Relevant federal laws include the Health Insurance Portability and Accountability Act (HIPAA), Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (ADA). In addition to the federal ADA, many states have established their own disability laws.

The point of keeping this information out of public view is to protect the employees. Even those people who have a legal right to view privileged data should have limited access. If everyone is allowed to see the data, the chance of the data being used against the employee in an aspect of employment rises dramatically. Even if the information was used inadvertently, the result is discrimination, which is illegal.

Restricting access dramatically decreases that risk.Employees should lock up confidential files when they aren’t being used. When in use, always lock them up when leaving the room or area, even if it’s for a short time. Simply placing the files in a drawer and locking the office door is insufficient. Anyone who has access to the room would also have access to the files.

Do Wyoming employers have to pay overtime to their salaried employees?

It depends. The Fair Labor Standards Act (FLSA) mandates that employees who work more than 40 hours in one work week receive overtime pay. The rate of pay is 1.5 times the employee’s average hourly rate. FLSA also allows employers to exempt certain occupations from overtime pay. These occupations usually include employees who are paid a salary instead of hourly wages.

Not all of the salaried employees are exempt, though. The FLSA divides salaried employees into two categories: salaried exempt (ineligible for overtime) and salaried non-exempt (entitled to overtime for more than 40 hours in one work week).

Understanding who is exempt and who isn’t can be confusing, because many different factors are involved.

The first checkpoint is straightforward. Without exception, an employee who makes less than $455 per week, regardless of occupation, is entitled to overtime pay.

Checkpoints beyond that get a little more complicated. FLSA allows employers to exempt outside salespeople, employees who earn more than $100,000 per year for non-manual labor, administrative employees, highly paid computer employees, executives, and professionals (with advance degrees) from overtime.

Yet, working in one of these occupations doesn’t automatically exempt the employee from overtime. The specific duties of the job also have to be taken into account.

For an executive to be exempt from overtime, he or she must direct the work of two or more employees. Simply giving an employee the title of “manager” doesn’t automatically place him or her in the executive category.

To be classified as salaried exempt, administrative employees must be in a position to exercise their own judgment in significant company matters. An administrative employee who decides which vendors to buy from would be considered salaried exempt. The administrative employee who places the orders to the vendors would be salaried non-exempt, and eligible for overtime pay.

Emergency room doctors and pharmacists are classified as salaried exempt, because they are professionals with advanced degrees. Artists and sculptors are exempt, too, because they are professionals with advanced knowledge.

Many Wisconsin employees wonder about their paid sick leave. Is there a state law that requires employers to give workers a specific number of days of paid sick time?

The answer is no. There is no Wisconsin law mandating the number of sick days a company is required to provide its employees. In fact, there is no law mandating paid sick days at all. Federal law doesn’t require paid sick time, either. Providing this benefit is strictly the choice of the individual employer.

There are ten states, though, where employers are legally obligate to pay workers for their accrued vacation time at termination. No laws exist in any states, however, that require the same for accrued sick leave. Even California, which has the toughest labor laws in the country, doesn’t mandate pay for accrued sick leave upon termination.

Employees are often surprised to find that employers are not legally obligated to provide paid sick leave. Many workers expect this benefit and feel the company “owes” it to them.

The majority of employers do offer paid sick leave as an employee benefit. They have the right to determine the number of days provided, and the procedure for taking sick leave. Once they offer the benefit, they can change it or cancel it at any time.

Employers will sometimes cancel paid sick leave as a benefit, because employees are abusing the privilege. Across the country, workers use their sick leave, when they aren’t sick, simply to take a day off. By revoking paid sick leave, the employer avoids paying employees using this leave as another vacation day.

Many companies have adopted a paid leave plan that negates sick leave being used as vacation. Paid Time Off (PTO) does not separate leave into vacation and sick, it simply provides employee with a certain amount of paid time off. The worker can use these days for any reason whatsoever. No more pretending to be sick to take a break from the job.

If a Utah employee is on short term disability for 11 weeks, can he or she be terminated for being away from work too much? Is short term disability restricted to only once a year, or can a worker utilize benefits more than once per 12 months?

The first question addresses job security. Short term disability benefits do not guarantee an employee’s job. It is possible for a worker on disability to be terminated. The benefits would continue, but the employee would no longer have a job.

If, however, the employer counts the leave as FMLA, the situation changes. FMLA (Family and Medical Leave Act) provides up to 12 weeks of unpaid, job-protected leave. When an employee returns from FMLA leave, the employer must present him or her with the same job or with a position comparable in salary, working conditions and benefits. The worker in the question would have only 1 more week of benefits.

Employers can count short term disability towards FMLA, but must notify the employee in writing prior to any leave being taken. After the employee goes on short term disability or after he or she returns to work, the employer cannot retroactively charge the leave toward FMLA.

In most cases, employees can be on short term disability more than once a year, provided they haven’t yet reached the limit specified by the plan. Short term disability is private insurance and plans can vary from company to company depending on which plan is purchased. The standard in the United States is to offer 13 to 26 weeks of benefits per year. So, the employee in question would be eligible for 2 to 15 additional weeks of benefits.

There are five states, though, that have established their own state-level mandatory short term disability laws. In these states, (California, New York, New Jersey, Hawaii and Rhode Island), the answers to these questions may be different.

Illinois employees are wondering if their benefit funds are protected by law.

The answer is yes, for most plans. The majority of private industry pension and health plans, including 401ks are protected by ERISA (Employee Retirement Income Security Act of 1974). This federal law applies to Illinois employees and to workers across the country.

ERISA sets the minimum standards for employee health and pension plans, and provides protection for the employees in these plans. Not all plans, however, are covered by ERISA. A plan established solely to comply with unemployment, workers compensation or disability laws is not covered under ERISA. Neither are plans set up by churches for their employees.

The Employment Benefits Security Administration (EBSA) is charged with enforcing ERISA and can be reached at 866-444-3272. Sadly, this number is called all too often to report misappropriation of funds by employers. In 2006, the U.S. Department of Labor recovered over $25 billion in employees funds, an amount that some estimates claim as only a quarter of the monies taken.

Consider Josh, an Illinois employee who contributes to the 401k plan offered by his employer. The contributions are deducted from his paycheck, but they never show up as deposits on his 401k statements. Josh’s employer could be misappropriating these funds.

The moment Josh suspects there’s a problem, he should call EBSA. Chances for recovering the funds are better if the problem is reported quickly.

In addition to EBSA, some states have laws mandating that employers make good on promised employee benefits. These laws are usually enforced by the Department of Labor for that state.

Some of the cases report that instead of holding these funds for the employees, companies deposited the money into their operating accounts to solve cash flow problems. There were also situations where company officers used the money for their personal benefit, including buying cars, houses, jewelry and even race horses.

Sometimes, it is possible to recover all of the misappropriated funds. Unfortunately, employees often receive only a portion of what was taken.

Every employee has the right to expect his or her private health information to be considered private. The Americans with Disabilities Act of 1990 (ADA) mandates that a worker’s disability status be kept confidential. The Health Insurance Portability and Accountability Act also mandates that a person’s medical information remain confidential.

Information considered confidential includes the employee’s race, gender, national origin, color, religion, disability status, medical condition and other privileged data. Several court cases along with federal laws demand that this data be kept separate from employee personnel files. The separate files must also be kept under lock and key.

Only persons with a legal right to view the information, such as human resources officers and supervisors should have access. Their access, though, should be limited. The more this information is viewed, the greater the chance that someone may inadvertently will use that information against the worker. That constitutes discrimination and is illegal.

Federal law doesn’t dictate what kind of lock system should be used. Alaska law doesn’t stipulate a lock system method, either. Currently, Alaska uses the “two-lock” system. Some Alaska employees, though, are unsure exactly what is involved with a two-lock system and how it maintains confidentiality.

The two lock system maintains confidentiality by requiring two levels of access. Confidential files are placed in a locked room inside a locked container (such as a filing cabinet). Accessing the data first requires access to the locked room. After that, the person must have access to the locked cabinet. The two lock system isn’t the only option, but is commonly used.

Though the type of lock system isn’t dictated by law, employers do have certain legal obligations. Under federal law, companies must do “whatever it takes” to keep an employee’s privileged information from being seen by anyone except those with the legal right. Whether maintaining confidentiality requires a two lock or a ten lock system, the company is legally obligate to use the system that provides the most security.

Most Missouri employers consider salaried employees ineligible for overtime, but that isn’t always the case. Depending on the occupation, salaried employees can qualify for overtime pay.

According to the Fair Labor Standards Act (FLSA) employees are entitled to 1.5 times their usual hourly rate when they work more than 40 hours in one work week. There are exceptions to this law, specifically salaried employees, but FLSA categorizes salaried employees in two ways: salaried-exempt and salaried non-exempt.

This is where employers can get confused. Classifying an employee as salaried exempt or salaried non-exempt depends on several different factors. Included below are some general guidelines.      

To be classified as salaried-exempt the employee must earn more than $455 per week, or work in one of the following occupations that the federal laws allows to be exempt from overtime.

• Executives: persons in a supervisory position who are in charge of the duties for two or more other employees.
• Professionals with advanced degrees –Employees with advanced knowledge, such as doctors or lawyers
• Creative Professionals –Workers who earn a living as a creative professional, including sculptors and artists.
• Administrative employees: persons with the power to use their own judgment when dealing with important business matters
• Computer employees: highly paid computer workers, including system analysts, computer programmers and software engineers
• Outside salespeople and employees whose annual salary is over $100,000

These guidelines mean that an employer can’t simply give an employee the title of manager to place him or her in the executive category. The worker’s exact duties must be considered.

An example of a salaried-exempt administrative employee would be a purchasing agent with the power to choose which vendors the company will use. This worker would be exempt from overtime. The administrative employee who simply places the orders, however, would be salaried non-exempt and entitled to overtime pay.

These guidelines apply to the federal FLSA. Some states have established additional or different guidelines. That means an employee could be ineligible for overtime under federal law, but be entitled to overtime pay under state law.

Policies for providing Florida employees paid sick leave are determined by each individual employer, if the employer decides to offer this benefit. Employers have this right, because they are not legally obligated to provide paid sick time at all. There is no Florida law that requires it. There is no federal law, either, that mandates companies pay workers for time off due to illness.

This fact is often a surprise to employees. Many workers feel that companies “owe” them this benefit.

The purpose of paid sick time is to provide income to employees when they are genuinely ill. There is a trend across the nation, however, for workers to pretend to be sick just because they want a day off from work. This time off is often referred to as taking a “mental health” day.

Due to this trend, companies will sometimes stop offering paid sick leave. Usually, the business will notify employees that as of a certain date, they will no longer be paid for time off due to illness. There are situations, though, where an employer will cancel this benefit without advance notice.

Canceling paid sick leave is completely legal, unless a union contract is in place that mandates this benefit.

Not giving warning may seem unfair, but the company is probably taking this action to save money. Consider that if a company announces that “In 3 months you will lose your 5 days of paid sick time”, every employee cold become “sick” for exactly 5 days before the program expires. By canceling without warning, the company avoids the expense of paying for workers to use that sick leave as additional vacation days.

There is a benefit program that provides a solution to the sick/vacation time problem. Many employers have adopted PTO, or paid time off, to provide paid leave. PTO does not separate leave into vacation or sick, it is simply paid leave. Employees may take this time off for any reason. With this program, workers no longer need to pretend to be sick to get a day off.

Nevada employees have two questions about short term disability. Can a worker be terminated while on short term disability? Can a worker go on short term disability more than once a year?

The answers to both of these questions depend on the terms of the short term disability plan.

Short term disability is essentially private insurance, which provides money to employees when they are unable to work. The amount and duration of money varies depending on the benefits of the specific plan. For information about these plans, employees should consult their HR department, read the insurance booklet or contact the insurance company directly.

Generally speaking, though, it is possible to be terminated while on disability. Short term disability benefits do not guarantee the employee will keep his or her job. If a worker has to miss a lot of time, the employer is usually within its rights to let that worker go.

 As for being on disability more than once a year, the majority of short term disability plans offer payments for 13 to 26 weeks per year. If an employee has been gone 8 weeks, then he or she could have 5 to 18 weeks of available coverage.

Another consideration is whether the employer has counted the leave as FMLA (Family and Medical Leave Act). Companies can’t count short term disability as FMLA leave unless the worker is notified in writing prior to taking leave. If that employee’s company is counting the 8 weeks of leave as FMLA, then the worker has 4 more weeks available.

FMLA (Family and Medical Leave Act) is a federal law which provides employees up to 12 weeks of unpaid, job-protected leave every 12 months. When the worker returns to the job, the employer must provide him or her with the same job, or one comparable in pay, benefits and working conditions.

If the leave wasn’t counted as FMLA leave, the employee still has those 12 weeks of leave available.

A Hawaii employee is suspicious about his 401k statements. His contributions are deducted from his paycheck, but don’t show up as deposits on his 401k statements. What actions should the employee take, if any?

The Hawaii employee should immediately place a call to the Employment Benefits Security Administration (EBSA) at 866-444-3272. The situation sounds as though the employer has misappropriated the employee’s 401k funds, and the EBSA has the power to take legal action.

The relevant law is the Employee Retirement Income Security Act of 1974, also known as ERISA. This federal law sets the standards for the majority of pension and health plans (including 401ks) that are voluntarily established by private industry. ERISA also protects the employees in these plans.

In addition to contacting EBSA, the employee should check with his state Department of Labor. Several states have enacted laws which mandate that employers abide by all promises made to employees regarding benefits, including 401ks. These laws are normally enforced by the state’s Department of Labor.

Unfortunately, situations like this man’s 401k problem occur with alarming frequency. Employers have used employee benefit funds to boost their operating accounts to solve cash flow problems, to buy expensive houses and cars, and in one case, to renovate a union-owned golf course.

In 2006, the U. S. Department of Labor recovered over $25 billion in misappropriated employee benefits. This amount represents a mere fraction of what was taken, possibly as little as 25%. Some employees received all of their money, but many workers only received a small portion of what they had invested.

The EBSA works hard to see that when funds are misappropriated, the employees get back every penny. Not all employee plans, however, come under their jurisdiction. ERISA applies to the majority of private industry plans, but doesn’t cover plans established by churches for their employees. Nor does it apply to government established or maintained programs. All plans set up simply to comply with disability, unemployment or workers compensation laws are exempt as well.

Nebraska employees wonder exactly what type of information is considered confidential, and how their “two-lock” system of maintaining confidentiality works.

There are several federal laws that require certain types of employee data to be kept confidential, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA) and HIPAA (Health Insurance Portability and Accountability Act. Under these laws, employers are prohibited from discriminating against any worker based on color, rage, age, gender, religion, country of origin, disability and other privileged information.

All privileged information is required by law to be kept separate from the rest of the employee personnel files. In addition, the confidential data must be kept under lock and key. The less these files are viewed, even by managers, supervisors and others with the right to see them, the less the risk of inadvertent discrimination.

To comply, confidential files should never be left on a desk or in an unlocked drawer or cabinet, even for a short period of time. Placing them in an unlocked filing cabinet in a locked office is also insufficient. Once the office is unlocked, other workers and even visitors would have access.

This is where the “two-lock” system applies. Often used to refer to the act of keeping data protected from unauthorized view both inside and outside of a company, the term can also refer to the method of protecting that data. In a two lock system, confidential files are placed in a locked filing cabinet in a locked room.

To view the confidential information, an employee must “pass” through two levels of security. First, the person needs access to the office. Second, he or she needs access to the filing cabinets. Access can be restricted at either of these two points, which results in two levels of security.

Neither federal nor Nebraska law mandates a two lock system. Instead, the law demands that employers do “whatever it takes” to insure that only those with a legal right are permitted to view confidential information, no matter how many locks are required.

Many Texas employers have asked if salaried employees are eligible for overtime.

The answer to this question is yes and no. Eligibility for overtime is determined by the FLSA (Fair Labor Standards Act). This federal law mandates that employees who work more than 40 hours in one work week are entitled to be paid 1.5 times their usual hourly rate, or overtime pay. Exceptions to the rule are some salaried employees. FLSA classifies them as either salaried exempt or salaried non-exempt.

Determining whether an employee is salaried exempt or salaried non-exempt involves many different factors. The FLSA provides some general guidelines that can assist in making this determination.

First, FLSA mandates that all salaried employees who earn less than $455 per week must be paid overtime, regardless of their occupations. Employees earning over $455 per week are classified as exempt or non-exempt according to their occupation and specific duties.

For example, executives are exempt from overtime, but only if they are responsible for managing the work of two or more other employees. Just being a “manager” doesn’t automatically make the employee salaried exempt.

Professionals with advanced degrees and creative professionals are considered exempt. This would include pharmacists, physicians, and sculptors and artists.

Highly paid system analysts, software engineers, programmers and other computer professionals are exempt from overtime. Outside salespeople and employees who earn over $100,000 per year for non-manual labor are ineligible for overtime pay.

Certain administrative employees can be classified as salaried exempt if they are in a position to make decisions that have significant impact on the company. For example, an administrative employee who oversees the purchase of supplies and has the power to choose which vendors to use would be exempt from overtime. In contrast, the administrative employee who calls the vendors to place the orders is non-exempt, and therefore entitled to overtime pay.

These guidelines apply to the federal law, but some states have established their own overtime laws. It is possible for an employee to be exempt from overtime under federal law and still be entitled to overtime under the state law.

If an employer has a union contract in place which requires the employees to be paid for sick leave, that employer must provide paid sick leave. If there is no contract in place, the employer doesn’t have to provide any sick days at all.

Sick leave is not mandated by law in any state. South Carolina has no paid sick leave law, nor is there a federal law. Providing paid sick days is completely up to the employer. They may choose to offer it at any time, and to stop offering it at any time.

Though there is no law requiring paid sick leave, many employees feel they are entitled to it, and that the company “owes” them the time. Sometimes employees who simply want a break from the office, or a “mental health” day, will pretend to be sick to take the day off.

The point of paid sick leave, however, is not to give the workers another vacation day, but to provide income when they are too ill to do their job. Employers who offer paid sick leave and then decide to revoke that benefit, may be doing so to prevent paying people for the extra “vacation day.”

When employers decide to stop this benefit, they usually give the employees advance notice. They do not have to give any warning at all, and some don’t. If an employer tells its workers that “In three months you will lose your 5 days of paid sick time.” it’s a safe bet that each employee will “be sick” for exactly 5 days during that period.

Recently, a new method of providing employees with paid leave has been adopted by many employers. PTO, or paid time off, doesn’t distinguish between vacation and sick time; it merely gives the employee a certain number of paid days off. With PTO, workers can take time off for any reason. No more pretending to be sick, just to get a “mental health” day.

Many employees wonder, can a New Mexico worker be terminated due to missing work while on short term disability?

In most cases, the answer is yes. Short term disability benefits do not guarantee an employee’s job. If the worker is away from work too much, the company, in most cases, has the legal right to terminate the employee. The worker may still receive payments, but will no longer be employed.

Can a New Mexico employee utilize short term disability benefits more than once a year?

It depends on the specific plan, and how many weeks the employee has already taken.

Understand that short term disability, even when purchased through work, is private insurance. The amount of money, the number of weeks, and the job security varies among the plans available. Usually, short term disability provides money for 13 to 26 weeks in a 12 month period. If the employee has been away from work for 9 weeks, he or she could be eligible for 4 to 15 more weeks.

If, however, the employer is counting these 9 weeks as FMLA (Family and Medical Leave Act), the amount of remaining leave is 3 weeks, period. Under FMLA, eligible employees are entitled to up to 12 weeks of unpaid leave per year.

In this situation, the worker’s job is guaranteed. Leave under FMLA is job-protected. This means that the employee cannot be terminated while on leave. In addition, upon returning to work, the employer must provide the worker with the same job, or a job with similar wages, working conditions and benefits.

The employer can only count short term disability as FMLA leave if the employee was given written notice prior to taking leave. Once the employee returns to work, the company cannot charge leave to FMLA retroactively.

If the short term disability isn’t counted as FMLA leave, the employee would still be entitled to those 12 weeks of leave.

Illinois employees are wondering if their benefit funds are protected by law.

The answer is yes, for most plans. The majority of private industry pension and health plans, including 401ks are protected by ERISA (Employee Retirement Income Security Act of 1974). This federal law applies to Illinois employees and to workers across the country.

ERISA sets the minimum standards for employee health and pension plans, and provides protection for the employees in these plans. Not all plans, however, are covered by ERISA. A plan established solely to comply with unemployment, workers compensation or disability laws is not covered under ERISA. Neither are plans set up by churches for their employees.

The Employment Benefits Security Administration (EBSA) is charged with enforcing ERISA and can be reached at 866-444-3272. Sadly, this number is called all too often to report misappropriation of funds by employers. In 2006, the U.S. Department of Labor recovered over $25 billion in employees funds, an amount that some estimates claim as only a quarter of the monies taken.

Consider Josh, an Illinois employee who contributes to the 401k plan offered by his employer. The contributions are deducted from his paycheck, but they never show up as deposits on his 401k statements. Josh’s employer could be misappropriating these funds.

The moment Josh suspects there’s a problem, he should call EBSA. Chances for recovering the funds are better if the problem is reported quickly.

In addition to EBSA, some states have laws mandating that employers make good on promised employee benefits. These laws are usually enforced by the Department of Labor for that state.

Some of the cases report that instead of holding these funds for the employees, companies deposited the money into their operating accounts to solve cash flow problems. There were also situations where company officers used the money for their personal benefit, including buying cars, houses, jewelry and even race horses.

Sometimes, it is possible to recover all of the misappropriated funds. Unfortunately, employees often receive only a portion of what was taken.

According to the Americans with Disabilities Act of 1990 (ADA), an employee’s disability information must be kept confidential. Other federal laws, such as HIPAA (Health Insurance Portability and Accountability Act) and Title VII of the Civil Rights Act of 1964, mandate that certain types of employee data can be viewed only by those with a legal right to see the information.

Oklahoma employs a “two-lock” system for maintaining confidential files, but many employees aren’t certain exactly what that means.

There is no Oklahoma or federal law which mandates addressing the lock system. Instead, the law expects employers to do “whatever it takes’ to ensure that confidential information is kept confidential, whether it takes two locks or five.

The first step to maintaining confidentiality is to separate the privileged information from the rest of the employee personnel files. That means that any data regarding a worker’s age, sex, race, medical condition, disability, religion, etc. must be put into a separate file.

The next step is to put all of these confidential files under lock and key. It is at this point where employees and employers can get confused about the best way to lock up confidential files. Some guidelines are listed below.

• Always lock up confidential files when not in use.
• Never leave a confidential file unattended on a desk, even for a short period of time.
• Don’t store confidential files in an unlocked drawer, even if the office locks. Once the office is unlocked, the files are accessible to everyone, including visitors.
• Limit the number of personnel authorized to view the files, even managers and supervisors.

Oklahoma’s two lock system is probably the most common method of protecting privileged information. The confidential files are placed into a locked filing cabinet in a locked room.

The point of keeping data confidential is to protect the employees. Using any of this data against an employee in any aspects of employment–even inadvertently– constitutes illegal discrimination. Restricting access to the data greatly reduces the risk of such acts.

Overtime pay is defined and mandated by the FLSA (Fair Labor Standards Act). Under this law, employees who work more than 40 hours in one work week are entitled to overtime pay at the rate of 1.5 times their usual hourly pay.

Some occupations are allowed to be exempt from overtime, usually those which include an annual salary rather than hourly wages. As a result, most Washington employers assume that they do not have to pay their salaried employees overtime.

This is correct, and not correct. Under FLSA, some salaried employees can be eligible for overtime pay and are classified as salaried non-exempt. Other salaried employees, particularly certain occupations, are ineligible for overtime and are classified as salaried exempt.

Unfortunately, there are many factors involved in determining which employees are exempt and which are non-exempt. As a result, employers can get confused. There are some general guidelines, though, that can help.

First and foremost, any employee who makes less than $455 per week is entitled to overtime, regardless of his or her job.

For employees who earn more than $455 per week, the classification as salaried exempt or salaried non-exempt depends on their occupations and duties.

• Outside salespeople and employees who earn more than $100,000 a year for non-manual labor are salaried exempt.
• Executives can be classified as salaried exempt, but only if they manage the work of more than two other employees.
• Administrative employees with power to exercise independent judgment in important company mattes are salaried exempt.
• Highly paid computer professionals, such as software engineers and computer analysts, are salaried exempt.
• Physicians and pharmacists, professionals with advanced degrees and advanced knowledge, are exempt from overtime. Creative professionals like sculptors and painters are considered exempt from overtime, too.

Federal guidelines are not the only factors to be considered. Some states have established their own overtime laws. That means an employee could be ineligible under federal law and still be entitled to overtime pay under the state law.

There are ten states in the U.S. that pay employees for their accrued vacation time when they leave the job. No state pays for accrued sick leave upon termination. In fact, there is no Vermont law or federal law requiring companies to provide its workers with any paid sick days at all.

Offering this benefit to its employees then, is up to the discretion of the individual employer. The exception occurs when the company has a union contract in place. If the contract specifies pay for sick days, the employer is legally obligated to do so.

Each business has the right to add paid sick days as an employee benefit at any time. It also has the right to cancel those benefits at any time. An employer may simply announce that after a certain date, employees will no longer accrue sick leave. Or, it may revoke this leave with no warning at all.

The point of paid sick time is to provide income for employees when they are too ill to work. Workers often feel they are entitled to paid sick days, and that the employers “owe” it to them. As a result, a worker may pretend to be sick to not come to work. It is sometimes due to this practice, that employers will discontinue the benefit without giving advance notice. By doing so, they no longer have to pay for a worker who is simply using the sick leave as another vacation day.

There is a different way, however, to offer employees paid leave. Many companies have switched from separate vacation time and sick time to offering PTO, or paid time off. With this plan, an employee can take a day off from work for any reason, whether they are ill, are going on vacation or simply want a break. They don’t have to pretend to be sick. They may take the time for whatever they want.

Pennsylvania employees want to know exactly what benefits they are entitled to when on short term disability. Is it legal for a worker to lose his job as a result of taking too much time off work? Can an employee go on short term disability again within the same year?

Short term disability benefits vary from state to state and from employer to employer. How much money, how long the employee will receive payments and how employment is affected are determined by the details of the specific plan.

The plans vary, because short term disability is private insurance, even when obtained through the workplace. This insurance provides employees money when they are unable to work. For detailed information, employees should read the insurance handbook, call the insurance company, or contact the benefits coordinator in Human Resources.

Most plans provide short term disability benefits for 13 to 26 weeks per year. These benefits do not guarantee the employee’s job. If the worker misses a lot of time from work, the employer is allowed to terminate him or her. The benefits will continue according to the details of the specific plan, but the worker would be unemployed.

In five states (New York, New Jersey, Hawaii, Rhode Island and California) with their own state-level mandatory short term disability plans, the answers may be quite different.

For example, John is on short term disability for 11 weeks. His employer provides 26 weeks of short term disability. John would still be eligible to 15 more weeks of benefits.

If John’s employer charges the leave as FMLA (Family and Medical Leave Act), John would only be entitled to 1 more week. To count short term disability as FMLA, the company must inform the employee in writing prior to taking leave. The company cannot charge time on short term disability to FMLA retroactively.

FMLA provides up to 12 weeks of unpaid leave, job-protected leave. When John returns from leave, his employer must give him either his old job, or one that’s comparable in working conditions, compensation and benefits.

When a South Dakota employee cannot work due to illness or disability, he or she can receive short term disability benefits. These benefits vary from company to company, because short term disability is private insurance and offers many different plans. An employee’s job is not guaranteed while on short term disability. If the employer feels the worker has been away from work too much, the employee can legally be terminated.

Generally, short term disability plans provide payments for 13 to 26 weeks per year. That means a worker can be on short term disability for 7 weeks, return to work and still have 6 to 19 weeks leave available to him or her.

If the employer charges the short term disability to FMLA (Family and Medical Leave Act), though, the worker will only have 5 weeks of leave left. FMLA provides up to 12 weeks of unpaid leave per year. On FMLA leave, though, the employer is not allowed to terminate the employee. This federal law guarantees that when an employee returns from leave, he or she will return to the same job, or to a position with comparable salary, benefits and working conditions.

If the employer doesn’t count the short term disability to FMLA, the employee is still entitled to take those 12 weeks when needed. Note that a company can only charge short term disability as FMLA leave if the employee is first notified in writing before any leave is taken. Once the leave starts, the employer cannot retroactively charge it to FMLA.

There are five states, including California and New York, which have established their own state-level mandatory short term disability laws. In these states, the benefits and situations regarding employment may vary from the scenarios described.

Employees who are unsure what their company’s short term disability benefits provide should consult their benefits coordinator in Human Resources. The worker can also read the insurance booklet or contact the insurance company directly.

Employers must remember to apply plans evenly across all employees. To do otherwise could constitute discrimination, which is illegal.

Many Iowa employees wonder who oversees their 401k plans. In 1974, the federal government established ERISA (Employee Retirement Income Security Act). ERISA sets the standards for most of private industry’s pension and health plans, including 401ks. This federal law applies to employees in Iowa and throughout the United States.

So, what if an Iowa employee suspects her employer of misappropriating some of these funds? For example, she contributes to a 401k. The deductions are taken from her pay, but never show up on her 401k statements. What is her best course of action?

Her best course of action is to call EBSA (Employee Benefits Security Administration) at 866-444-3272 as quickly as possible. EBSA is the group that enforces ERISA and can be instrumental in retrieving employee funds, especially if the problem is reported right away.

ERISA sets the standards for pension and health plans and provides protection for the employees covered by these plans. In addition to contacting EBSA, the employee can also check with the state of Iowa. Some states have established laws forcing employers to make good on promised plans. Usually these laws come under the jurisdiction of the state Department of Labor’s Wage and Hour Division, but the name can vary from state to state.

Sadly, the situation posed about the Iowa employee is not a rare occurrence. In 2006, the U. S. Department of Labor recovered over $25 billion in employee benefits funds, including 401ks, pension and health accounts. According to some estimates, that amount was merely 25% of what was misappropriated.

In some cases, employers deposited these employee funds in their operating account to solve cash flow problems. In other scenarios, company officers used the money to buy houses, condos, jewelry and expensive cars. One union in California used employee benefit funds to renovate its golf course.

Not all pension and health plans are covered under ERISA, such as plans established by churches for their employees. Group health plans set up or maintained by government entities don’t come under ERISA’s jurisdiction, either. Employees would be wise to check with their benefits coordinator to see if their benefit funds are protected.

Rhode Island utilizes the “two-lock” system to maintain confidentiality of an employee’s privileged information. Rhode Island law doesn’t address the exact parameters of the lock system so many employers and employees wonder how the system works.

The two lock system is a safe, and probably the most common, method of maintaining confidentiality. It consists of two steps, each of which provides a distinct level of security. Confidential files are placed into a locked filing cabinet in a locked room. Anyone needing to view the information must first be given access to the room, and then to the filing cabinet.

Employee information is kept confidential to prevent anyone, knowingly or unknowingly, from using the data to illegally discriminate against an employee. Several federal laws and several court cases mandate that this information be considered privileged and be kept under lock and key. Included are Title VII of the Civil Rights Act of 1964, HIPAA (Health Insurance Portability and Accountability Act) and the Americans with Disabilities Act of 1990 (ADA).

According to federal law, all data regarding age, sex, race, color, national origin, religion, medical condition, disability status, etc, must be separated from the rest of the employee personnel files. These files must then be locked away, and viewed only by those with a legal right to see the information.

Federal law doesn’t address the lock system, either. It does demand, however, that companies do “whatever it takes” to maintain and protect every employee’s privileged information. Whether that requires two locks or four or five depends on the needs of the employer.

There are some guidelines how to handle files when in use. For example, never leave confidential files unattended, even for a short time. Always place them in a locked drawer or filing cabinet. Never put files in an unlocked cabinet or drawer, even if the room locks. Anyone with a key to the room would also have access to the files.

“Reasonable accommodation” is a phrase often heard when discussing issues of accessibility in the Connecticut workplace.

What does it mean? How should it be interpreted?

The term comes from the Americans with Disabilities Act (ADA), passed in 1990. According to this federal law, businesses must make what are called “reasonable accommodations” for their employees with disabilities.

Before 1990, or less than 20 years ago, curb cuts and wheelchair ramps were still a rare sight. That is because, prior to the passage of the ADA, employers and building owners, whether public or private, were under no legal requirement to provide accessibility to differently-abled workers. With the coming of the ADA, not only were employers required to make “reasonable accommodations,” but new buildings, and old ones undergoing renovations, had to be fitted, or retrofitted as the case may be, with accessibility features.

The interpretation of “reasonable accommodation” will vary with circumstances and from one job and employer’s (or employee’s) situation to another in Connecticut. While ADA is a federal law, state laws also apply in many cases.

The concept of reasonable accommodation under ADA can best be approached through hypothetical examples.

The operator of “Software Gurus” rents a small office on the third floor an antiquated building in San Francisco’s South of Market that has not been renovated since 1976, a building without an elevator. He would like to make his office accessible to a valued potential web developer who is a master of Java, CSS, and C-Plus. The employee is disabled and could not get to the office without an elevator. It would cost easily more than $20,000 to install such an elevator, and the building’s owner has no intention of putting one in. Would it be “reasonable accommodation” to require the owner of “Software Gurus” to put a costly elevator in a building he does not even own? It is unlikely. In this case, the only way to hang onto the potential employee is to offer that she work remotely from home.

As a side note, if the building’s owner ever decided to renovate, he would be required to retrofit the building for accessibility, even if none of the businesses in it were currently employing disabled workers.