California Human Resource Blog

Archive for June, 2010

What is considered the “regular” rate of pay?

Monday, June 28th, 2010

The employee’s regular rate of pay is the basis for calculating overtime. The regular rate is not simply an employee’s normal hourly amount. The regular rate is a term used to mean the employee’s actual rate of pay once all hourly earnings plus many other types of compensation are considered. The regular rate must include nearly all forms of pay received by that employee, including commissions, production bonuses, piece work earnings, and value of meals and lodging. Base overtime on the employee’s regular rate of pay including all the above forms of payment.

Amounts not included in the regular rate of pay are:

  • Gifts (such as those received for holidays or birthdays, as a reward for service, the amounts of which are not based on hours worked, production, or efficiency);
  • Hours paid but not worked (such as vacation, holidays and sick leave; reporting time; and split shift pay);
  • Reimbursement of expenses;
  • Discretionary bonuses (these are bonuses in recognition of services performed during a given period, provided that the fact that payment is to be made and the amount of payment are determined at your sole discretion at or near the end of the period);
  • Profit-sharing plans (payments made in recognition of services performed during a given period, made to a profit-sharing plan or trust or bona fide thrift or savings plan, without regard to hours of work, production, or efficiency);
  • Employment Retirement Income Security Act (ERISA) plan payments (irrevocable contributions for old age; retirement; life, accident, or health insurance; or similar employee benefits); and
  • Overtime pay.

For an employee whose compensation is based wholly or partly on bonuses, commissions, or multiple hourly rates, you must calculate the regular rate of pay each workweek, because the employee’s overtime rate each week must be based on the regular rate of pay, not just the normal hourly rate of pay.

Calculating the regular rate of pay requires that all compensation received for the week (including multiple hourly rates, bonuses, commissions, etc.) be divided by the total number of hours worked.

For example:

Hourly Wage:                                                  $8.00

Commissions:                                                $50.00

Hours Worked in the Pay Period:                   45 (40 regular & 5 overtime hours)

Hourly Rate of Pay for Overtime:                    $9.11 (($8×45)+($50/45))


WHEN NOT TO DO PERFORMANCE APPRAISALS

Monday, June 28th, 2010

Did you ever think an HR Professional would tell you not to do performance appraisals?  While these are considered an essential part of human resources “best practices”, your YPP HR Professionals would actually prefer you not do them at all if you are not going to do them right.  We routinely see performance appraisals that were poorly done, creating far more potential issues than if they had not been done at all.

One common problem is that clients complete appraisals with “meets standards” in areas where they have had performance issues with employees.  How does an employee “meet standards” who repeatedly fails to show up for work on time, is rude to clients, violates company policies, or does not have the level of skill needed for the position?   This is the common pitfall of an owner, manager or supervisor who is afraid to be honest with employees, and as a result they create more liability with the appraisal.

If you want to do these right, here’s some Essential Guidelines, and we always recommend that you have your YPP HR Manager review your appraisals before you give it to employees so we can help you achieve your goals.

Essential Guidelines for Appraisals

1. Carefully document how all employees are performing

You might be tempted to document only your problem employees. A better practice is to keep performance records on all of your workers. This means carefully recording your observations, praise, counseling, and warnings—in writing—in clear, objective language.  Establish an electronic document for each employee and add notes as needed, including the date and identification of the person who added those notes.   If you congratulate an employee for doing a good job, make sure that is documented as well as the issues addressed.

2. Be candid and explicit

Although many managers are uncomfortable with this, it’s important to be frank. Don’t use euphemisms, such as, “There’s room for improvement,” or duck out of giving an employee strong, but necessary, constructive criticism. Be specific about what’s gone wrong and offer concrete steps for improvement. It is unfair and unrealistic to expect an employee to improve unless he or she knows exactly what is amiss.  Just as important, juries do not like it when an employee has not been told what the expectations are and where they need to improve.

An example:  “John does not have the level of skills using computer hardware, software, and the other equipment required to do his job. As a result, he frequently needs help and distracts others from their work.  For example, he was recently asked to create labels using an Excel list, and was not able to complete it without assistance from other staff because of a lack of skills in this essential software”.

3. Don’t give raises to marginal employees

Some employers give poor performers a raise in the hope it will motivate them to improve. Without counseling an employee about his or her inadequate performance, however, this strategy is doomed to fail. What’s more, if the employee is terminated and sues, he or she can point to the history of pay raises to show that he or she was doing a good job.

4.  Separate raises from performance appraisals

You should establish an annual or semi-annual review of compensation for all employees.  This helps manage your compensation costs, and eliminates the expectation of most employees that they are entitled to a raise when they receive a performance appraisal.

5. Don’t mention age, gender, race, etc.

In addition to these comments being illegal and inappropriate, don’t set yourself up for a discrimination complaint.  This means, for example, not telling a 45-year-old, “The younger salespeople seem to grasp our new products better than you do,” or “We need younger people with more energy around here.”   Appropriate feedback for employees would be “you have demonstrated some difficulty understanding new products quickly, which is important for your position so you can discuss the products with customers”.  Performance appraisals also should not discuss leave of absences taken by the employee, particularly when those were for medical reasons.

6. Don’t let marginal performers slide

When an employee’s poor performance goes uncriticized for several weeks or months, negative comments in a performance evaluation lose credibility and are likely to trigger complaints of unfairness or bias.   If the performance issues was serious, it’s appropriate to mention it but also to state how the employee has improved and what improvement is still needed.  The performance appraisal should not be the first time an employee learns they are not performing to expectations.  It should also not ignore performance issues;  if you let those slide in a performance appraisal, those previous issues can be negated.

7. Use relevant, objective standards

Look at the job and how it is being performed, rather than the person. Some examples of objective criteria are:

  • Maintaining or increasing sales volume
  • Handling customer complaints
  • Working with coworkers
  • Operating within a budget
  • Meeting deadlines
  • Written communications and reports
  • Complying with certain company policies (such as those regarding absences)
  • Reducing costs
  • Overall productivity

8. Back up judgments with facts

Use production records, disciplinary reports, attendance records, examples of work quality, etc., to back up your assertions, and be clear about how you arrived at your conclusions.

9. Make sure employees understand all performance standards

If they don’t fully understand their obligations and how their work is being judged, the performance appraisal system will be of little use, either as a performance management tool or a defense in a lawsuit.

10. Keep all performance evaluation materials in a confidential file

While employees should have access to their performance appraisals, others’ access to such information should be strictly on a need-to-know basis.

11. Seek feedback from the employee

A performance appraisal is most effective when you seek the employees’ input and give them an opportunity to tell you where they don’t think they are being as effective as possible, what you or the company could do to help them improve, and what processes or services they may have ideas about improving.  An appraisal meeting should be a collaborative environment instead of the traditional “let me tell you how I ranked your performance” meeting.


Warning: Employee Classification Errors Are Costly!

Monday, June 28th, 2010

How confident are you that your Exempt employees and Independent Contractors can withstand scrutiny by the Department of Labor?  We hear many employers say they’re very confident, only to see that confidence diminish rapidly when they have to actually verify it.

We’ve done several articles about the dangers of misclassification.  Now the Department of Labor (DOL) is making it potentially much more serious and costly.  The DOL’s Wage & Hour Division (WHD) has 250 new investigators, and plans to have 1,000 by the end of 2011 – a 50% increase over 2008.  Their focus:  partnering with other DOL agencies, state agencies and others to investigate misclassifications on a nationwide basis.   This includes exempt and independent contractor classifications.  The fiscal budget for 2011 also includes $10.9 million in grants to states to assist them in identifying misclassifications through states’ unemployment systems.

Why the push for this heightened enforcement?   WHD’s data indicates this is a growing problem.  In fiscal year 2009, WHD found $2,650,520.28 in back wages owed to 2,190 employees where misclassification was the primary reason an employer did not pay overtime and/or minimum wages.  This was a 50% increase over 2008.

Independent Contractor misclassifications raise a number of issues besides minimum wage and overtime.  In those situations, the worker is generally not covered by workers’ compensation and unemployment insurance, leaving insurance carriers and state UI funds underfunded.

In addition to increased investigations and enforcement, the DOL is supporting the passage of Senate Bill 3254, the “Employee Misclassification Prevention Act” (EMPA) which includes:  making misclassification a violation of the Fair Labor Standards Act; requiring employers to provide a written notice to employees of how they are classified, with a presumption the person is an employee if the notice isn’t provided;  adding civil monetary penalties for failure to keep adequate recordkeeping.

If you have exempt employees or independent contractors, contact your YPP HR Manager for assistance in reviewing these classifications.