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    February 9, 2008

    Human Resources for Long Term Care

    A Human Resources Teleconference Series for

    Long Term Care Human Resources Personnel

    Session II: Wage & Hour Issues

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    Brian R. Purtell

    Wisconsin Health Care Association & DeWitt Ross & Stevens S.C.

    (608) 252-9366

    [email protected]

    [email protected]

    &Mindy Rowland Buenger

    DeWitt Ross & Stevens S.C.

    (608) 252-9320

    [email protected]

    Human Resources for Long Term Care

    Session II: Wag & Hour Issues

    Presenters:

    mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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    Overview and Review of the FairLabor Standard Act (FLSA)

    On-Call/24 hour coverage

    Exempt vs. Non-exempt

    Break/Lunch time requirements

    Posting expectations

    OvertimeTimekeeping procedures

    Minimum wage

    Todays Session

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    Overview, applicability

    Recent focus on LTC providers

    Results of DOL LTC reviewEnforcement

    Remedies

    Penalties

    Risks

    Focus areas

    Overview and Review of the FSLA

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    C

    Overview and Review of the FSLA

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    DOL Activity in LTC

    Review Findings

    Overview and Review of the FSLA

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    Enforcement

    Penalties

    RemediesFocus areas

    Overview and Review of the FSLA

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    DOL and DWD Resources

    Overview and Review of the FSLA

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    Suffered or Permitted

    On-Call Time

    Meal and Rest PeriodsWaiting Time

    Training Time

    Travel TimeSleep Time

    Hours Worked: Issues

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    Wisconsin law: E/ees must be paid

    for all time spent in physical or

    mental exertion (whether burdensome

    or not) controlled or required by the

    e/er and pursued necessarily and

    primarily for the benefit of the e/ers

    business Wis. Admin. Code DWD272.12(1)

    Suffered or Permitted

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    Federal law: employ= to suffer or

    permit work

    Work not requested but suffered orpermitted is work time

    Suffered or Permitted

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    On-call time is hours worked when

    Employee has to stay on the employerspremises

    Employee has to stay so close to the employerspremises that the employee cannot use that timeeffectively for his or her own purposes

    On-call time is not hours worked when

    Employee is required to carry a pager

    Employee is required to leave word at home orwith the employer where he or she can bereached

    Hours Worked: On-call time

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    Case-by-case determination.

    Factors include:

    Length of any required time limits forresponding to calls.

    Geographic restrictions on employeesmovements;

    Frequency of actual calls during such time;

    Ability to trade on-call responsibilities, and

    number of employees working on-call;Whether use of pager would easerestrictions on employee

    Hours Worked: On-call time

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    Factors (cont):

    Whether employee actually engaged inpersonal activities while on-call

    Whether agreement existed re:compensation while on-call, and whetheremployees were aware at time ofaccepting position;

    Geographic location of employer; and

    The effect of requiring compensation foron-call activities both to employer andemployee

    Hours Worked: On-call time

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    Meal periods are not hours worked

    when the employee is relieved of

    duties for the purpose of eating a

    meal

    Rest periods of short duration

    (normally 5 to 20 minutes) are

    counted as hours worked and must bepaid

    Hours Worked: Meal and Rest

    Periods

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    LTC Issues: For periods to not be hours

    worked, staff must be fully relieved from

    responsibilities.

    Regular pulling staff from meals/breaks to attendto residents may equal compensable time. Meal

    periods are not hours worked when the employee

    is relieved of duties for the purpose of eating a

    meal

    Unauthorized extension of break, contrary toclear policy, need not constitute hours

    worked.

    Hours Worked: Meal and Rest

    Periods

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    Counted as hours worked when:Employee is unable to use the timeeffectively for his or her own purposes; and

    Time is controlled by the employer

    Not Counted as hours worked when:Employee is completely relieved from duty;and

    Time is long enough to enable the employeeto use it effectively for his or her ownpurposes

    Hours Worked: Waiting Time

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    Time employees spend in meetings,

    lectures, or training is considered hours

    worked and must be paid, unless

    Attendance is outside regular working hours

    Attendance is voluntary

    The course, lecture, or meeting is not job

    relatedThe employee does not perform any

    productive work during attendance

    Hours Worked: Training Time

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    Training Time Issues for LTC:

    In-service

    NA Training

    Hours Worked: Training Time

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    Exempt vs. Non-exempt

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    When must breaks and lunch be paid

    time?

    Break/Lunch Time Requirements

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    Break/Lunch Time Requirements

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    State and Federal Posting

    requirements

    Prominence

    Location

    What must be posted

    Alternatives to posting

    Posting Expectations

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    Who is eligible

    When must overtime be paid

    Calculation of Base rate80/80 rule

    Overtime Issues

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    Requirements for employers

    Retention of documents

    Punch-inWhen are employees on the clock

    Off the clock work

    Timekeeping Procedures

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    When must you pay an employee for

    training time

    Nurse aid training issues

    How much c

    Training and In-service Issues

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    Minimum Wage Issues

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    Direct Deposit requirements

    Payroll Issues

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    DOL has not directly addressed, but time spent usingcell, PDAs, etc, during non-business time by non-exempt personnel during non-business hours may beconsidered compensable time.

    Employees must be paid for work purpose use, unless

    de minimusDeducting for lost or damaged electronics:

    Exempt employees: Salary deductions for lost ordamaged company property would defeat theemployees exemption b/c salary would not beguaranteed or paid free and clear DOL opinion3/10/06

    Non-exempt: DOL has stated an employer may notrequire an employee to pay for an expense of e/erbusiness if doing so reduces e/ees pay below requiredmin. wage or overtime premium due.

    Employee Use of Cell Phones,

    email, PDAs impact on FLSA

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    Summary of CBC Process

    Applicant completes Background Information DisclosureForm (BID)

    As applicable from BID, check other states, military

    discharge, etc.If clean BID, eligible for provisional hire for up to 60 days

    Submit CBC to Wisconsin Department of Justice

    Review results of CBC (criminal history and DHFS search)

    Check for crimes/findings thatpreclude employment

    As applicable, follow-up on required information for look

    back crimesEmployment decision

    Resubmit four years from anniversary date

    Wisconsin Caregiver Background

    Check Law (WCBC)

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    Non-client residents

    Minors: Not required to conduct,

    when minor but must conduct upon

    employee turning 18

    Volunteers: Not covered, unless

    serving e/ee role

    Temporary/pool employees

    CBC Issues and Problems

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    E l t Di i i ti

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    Wisconsin includes arrest or

    conviction records within the definition

    of employment discrimination.

    Minority of States

    substantially related test for convictions

    andpendingcharges

    Arrests cannot be used as the basisfor employment decisions if they

    substantially relate to the position.

    Employment Discrimination

    Based on Arrest or Conviction

    Records

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    Affirmative obligation vs. defense to

    discrimination charge.

    HFS 12.06 Factors

    Balance of risks

    The Substantially Related Test

    A idi /D f di A i t

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    Employment application question:

    Okay to ask about convictions/arrests?

    Explaining why applicant not hired:

    Okay to tell them reason was conviction?

    Case by case determination

    Defenses

    Employee lied on application

    50.065 language vs. 111.335

    Job substantially relates to crime

    Avoiding/Defending Against

    Employment Discrimination

    Charge

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    Wisconsin Consolidated Court

    Automation Programs (CCAP)

    www.wcca.wicourts.gov

    Uses

    Limitations

    More than criminal history, e.g. traffic,

    civil, family

    Screening Options

    http://www.wcca.wicourts.gov/http://www.wcca.wicourts.gov/
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    FBI Background Checks

    Drug/alcohol testing

    Credit/financial checksSex offender databases

    http://offender.doc.state.wi.us/public/search/search.jsp

    Internet/Facebook/MySpace

    Other Screening Options

    http://offender.doc.state.wi.us/public/search/search.jsphttp://offender.doc.state.wi.us/public/search/search.jsphttp://offender.doc.state.wi.us/public/search/search.jsp
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    Revised I-9 Forms

    How has it changed?

    Online version:

    http://www.uscis.gov/files/form/i-9.pdf

    Document Retention

    Employment Eligibility

    Determination

    http://www.uscis.gov/files/form/i-9.pdfhttp://www.uscis.gov/files/form/i-9.pdf
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    SSA Mismatch Letter Regulations

    Status

    Plans for future

    E-Verify

    What is it?

    Do I have to e-verify?

    Should I?SSNVS Verification

    Employment Eligibility

    Determination

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    Questions?

    Select *2 to enter queue