Ohio News & Analysis

  • Waiting is the hardest part: Don't fire poor performer without keeping good records

    Sooner or later, all employers will experience a poor performer. Ideally, struggling employees will improve through your efforts to train, review, coach, and reward good performance. But some don't improve, and you must ultimately grapple with terminating them. Before doing so, it's critical to confirm that written job evaluations accurately document the individual's performance. If you don't, you have missed an opportunity to develop the primary defense against a potential wrongful discharge claim: written reviews establishing a legitimate basis for the discharge. When the records are inadequate, your best option is to postpone the termination until you can establish an accurate account of the person's performance.

  • Handling office romance in #MeToo era: Know your options

    As Valentine's Day nears, love is in the air—and oftentimes in the workplace. Although workplace romance is common, it can make HR professionals fret about all the what-ifs. What if a relationship is between a supervisor and a direct report? What if rumors of favoritism poison the workplace environment? What if one or both participants is married to someone else? What if a couple's public displays of affection make coworkers uncomfortable? What if a relationship goes sour and the breakup affects morale? And perhaps the most important question to consider: What if a relationship is one-sided and is more accurately described as sexual harassment instead of consensual?

  • Something lacking in your workplace? Boosting employees' soft skills can help

    Anyone involved in recruiting and hiring knows the importance of assessing a candidate's skills. Does the candidate have the right training, experience, and credentials to do the job? But anyone in charge of hiring (or maybe even rehabilitating already-employed workers who aren't quite measuring up) knows that merely evaluating a candidate's hard skills isn't enough. More and more, employers are finding "soft skills" are essential in the workplace.

  • Q - A: Employee's absences are a punch to the gut

    Q: We have an employee who is using leave protected by the Family and Medical Leave Act (FMLA) because of ulcers. He calls in nearly every day but occasionally shows up for work before he's off again. I heard through the employee grapevine that he is having surgery later this month, but he hasn't officially notified HR. When he does come in to work, he isn't completing his assigned tasks in a satisfactory manner. If not for his FMLA leave and his medical condition, we would terminate his employment. What can or should we do?

  • European countries take steps to confront #MeToo issues

    As the #MeToo movement enters its third year, its important to note the United States isnt the only country where the awareness of discriminatory and harassing conduct in the workplace has increased dramatically. Governments in Europe and elsewhere also have responded to the urgent need to combat the persistent and unwelcome behavior.

  • Winter is coming: FLSA and your pay obligations during inclement weather

    During the winter months, the threat of the weather turning frightful is on everyone's mind. No matter what business you may be in, inclement weather and treacherous road conditions can cause many headaches—including issues with employee payroll. Many employers grapple with the question of how to pay employees when the business is closed because of bad weather and whether deductions from pay for closures are allowed. Let's explore what the Fair Labor Standards Act (FLSA) requires of employers when Mother Nature wreaks havoc.

  • Looking back at 2019 and to what's ahead for federal agencies in 2020

    The National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Department of Labor's (DOL) Wage and Hour Division (WHD) all ramped up their enforcement endeavors in 2019. The NLRB has refocused its efforts on unionized businesses, the new EEOC chair is pushing to settle old cases, the OFCCP director is aiming to end the year with the largest settlement total in the agency's history by resolving or litigating old audits, and the WHD has filed a record number of enforcement cases against employers.

  • SCOTUS decision on LGBTQ workplace protections coming in 2020

    Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against employees or job applicants on the basis of race, color, religion, sex, or national origin. In recent years, controversy over whether the term "sex" as used in Title VII includes sexual orientation and gender identity has arisen among the federal circuit courts of appeals. The U.S. Supreme Court has agreed to resolve the split. No matter where the Court falls on the issue, the decision will supersede existing precedent in at least some circuits and will have a lasting impact for decades to come.

  • Truth about holiday season? It's not always what it's nut-cracked up to be

    Many of us are fully involved in the crush of festivities and holiday shopping that traditionally mark the beginning of the sprint to New Year's Eve. This is the season of peace on earth and good will toward our fellow man, right? Well, not always.

  • Proposed rule aims to expand use of fluctuating workweek

    A new proposed rule from the U.S. Department of Labor (DOL) intends to clarify that employers that pay nonexempt workers bonuses or other incentive-based pay in addition to a fixed salary can use the fluctuating workweek (FWW) method of paying overtime as a way to keep costs down as long as other requirements for using the method are met.

    The proposal would revise the regulation for computing overtime compensation for salaried nonexempt employees who work hours that vary each week (i.e., a fluctuating workweek) under the Fair Labor Standards Act (FLSA). The DOL is touting the proposed rule, published in the Federal Register on November 5, as a way to expand access to bonuses to employees whose hours vary from week to week.

    If finalized, the rule would likely encourage more employers to use the FWW method of computing overtime since employers interpreting current rules might be hesitant to use the method if they also pay bonuses or other premium payments. The proposed rule clarifies that employers whose employees qualify for the FWW method can use it as long as the bonuses or other payments are included in the employee's regular rate of pay.

    How the method works

    Not all jobs qualify for the FWW method, and employers that don't meet the requirements can find themselves liable for unpaid compensation an employee who is paid on an hourly basis would have earned. Employers using the FWW method must meet these requirements:

    • Nonexempt employees (i.e., those who are eligible for overtime pay) must be paid on a salary basis, meaning they earn a fixed amount regardless of the number of hours worked in a week;
    • The employer and employees must have a mutual understanding of the fixed salary;
    • The fixed salary must be high enough to at least equal the minimum wage, even during weeks when the greatest number of hours are worked; and
    • The employees' hours must actually fluctuate from week to week.

    Under the method, employees earn a set weekly salary even if they don't work a full 40-hour week. Since they are exempt, they also must be paid a premium if they work more than 40 hours in a week.

    The FLSA requires nonexempt employees to be paid overtime at time and one-half the regular hourly rate for any hours worked over 40 in a workweek, so an employer must calculate how much a nonexempt salaried employee earned per hour to determine the overtime rate. That rate is paid for all the hours worked, giving the employees the "time" part of the overtime premium. Then the hourly rate is divided in half to get the "half" part the law requires.

    So, an employee earning a base salary of $400 a week makes $10 an hour for 40 hours of work. If the worker works 50 hours in a week, that $400 base salary is divided by 50 for an hourly rate of $8. That rate is paid for all 50 hours, and half the $8 hourly rate is used to calculate the overtime pay for the 10 hours of overtime. Half of $8 is multiplied by the 10 hours of overtime, so the employee's weekly pay plus overtime would be $440.

    By contrast, an employee paid on an hourly basis at a $10-an-hour rate would earn $400 for the first 40 hours and $15 an hour for the 10 hours of overtime (time and a half of a $10-an-hour wage) for a total of $550 for the week.

    Under the proposed rule, employers using the FWW method and paying bonuses would have to include the bonus payment when calculating the hourly rate.