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HR Snapshot
HR
Snapshot
CAN WE REQUIRE REMOTE EMPLOYEES TO INFORM US WHEN THEY MOVE TO A NEW CITY OR STATE?
CAN WE CUT A PERFORMANCE IMPROVEMENT PLAN SHORT IF THE EMPLOYEE’S PERFORMANCE ISSUES HAVE GOTTEN SUBSTANTIALLY WORSE?
Yes, you can and should require that remote employees notify the company when they move. There may be compliance and tax obligations when an employee relocates to a new city or state—not only for the employee, but also for you as the employer. For example, a relocated employee may now be owed a higher minimum wage or be eligible for paid sick leave. Workers’ compensation and unemployment insurance may also be affected. In general, yes. When an employee is on a performance improvement plan (PIP), and their performance has not improved and has, in fact, gotten worse, it is perfectly reasonable to cut the timeframe of the PIP short and move forward with further disciplinary action, including termination. Unless it’s written to say otherwise—and it absolutely shouldn’t be—a PIP is not a guarantee of employment for the duration of the plan. It shouldn’t alter the at-will employment relationship. Just be sure that you are following historical practices if you have had similar situations in the past. The most important thing is to remain consistent. Document—and tell the employee—the reason why the PIP was cut short, listing each policy violation or performance issue individually, in case you are asked to provide context at a later date.
Answer from Kim, SPHR, SHRM-SCP
We recommend that you not require applicants to have a high school diploma unless you can demonstrate that the requirement is job-related and consistent with business necessity. Requiring a diploma when it’s unrelated to the position can be discriminatory under both Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA).
While federal law doesn’t explicitly prohibit employers from requiring applicants to have a high school diploma, the Equal Employment Opportunity Commission (EEOC) has cautioned employers about the use of such policies. According to EEOC guidance, “a high school diploma requirement is discriminatory under Title VII if it has a disparate impact on a protected group and is not job-related and consistent with business necessity.” A disparate impact occurs when a policy or rule appears to be neutral but results in a disproportionate impact on people within a protected class (e.g., race, sex, or religion). Diploma requirements may also violate the ADA if they tend to screen out individuals with disabilities when a diploma isn’t required to do the job.
When assessing the qualifications of job applicants, it’s best to focus on essential job functions and previous experience.
Answer from Rachel, SHRM-SCP
Answer from Janelle, SHRM-CP, SHRM-PMQ
IF WE GET CALLED FOR A REFERENCE, CAN WE JUST VERIFY THE FORMER EMPLOYEE’S DATES OF EMPLOYMENT?
Yes, it’s up to you how much or how little you share about a former employee. There’s no legal requirement to supply employment references for former employees. If you do share any information, it should be fair and accurate. Many organizations choose to share only basic information about former employees, such as dates of employment and job title. You should be consistent when providing any information to avoid any appearance of discrimination.
If you would like to provide more in-depth information about an employee’s character or job performance, we recommend having a policy in place to guide current staff on what and how information may be shared.
Answer from Kyle, PHR
WE WOULD LIKE TO RECLASSIFY AN EMPLOYEE FROM EXEMPT TO NONEXEMPT STATUS. IS IT OKAY TO DO THIS? WHAT DO WE NEED TO DO TO CHANGE THEIR STATUS?
Yes, it’s possible to make this change. Any employee can be classified as a nonexempt employee, although we generally recommend that all employees in the same role have the same classification.
That being said, exempt employees sometimes feel there is a certain “status” involved in being salaried and exempt. If you decide to reclassify an employee, aim to do so in a manner that does not denigrate them or cause them to become disengaged.
When reclassifying employees from exempt to nonexempt, it’s important to clearly communicate the change in writing, make the change effective in payroll and job descriptions, and communicate your policies and expectations that will be affected. You’ll also want to ensure that managers understand all applicable wage and hour laws impacting nonexempt employees and how they may affect their day-to-day work. These may include:
• Taking meal and rest breaks • Properly tracking their time • Reporting any overtime worked
We also highly recommend that you implement this change with advance notice to the affected employees and with an effective date that falls on the start of a workweek and your payroll cycle. This gives you time to communicate your expectations and train your employees on the policies they’ll need to follow now. We recommend obtaining a written acknowledgment from the affected employees showing their understanding of these changes.
If you are reclassifying the employee because you realized they have been misclassified as exempt, you may want to speak with an employment attorney first since the change may tip the employee off that they were previously missing out on overtime or other benefits.
Answer from Sergio, SHRM-CP
