HR Snapshot

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Snapshot

WE’VE HIRED SOMEONE TO HELP OUT WITH SOME END-OF-YEAR TASKS, AND THEY’LL BE LEAVING SHORTLY AFTER THE NEW YEAR. CAN WE PAY THEM AS AN INDEPENDENT CONTRACTOR SINCE THE DURATION OF THEIR EMPLOYMENT WILL BE ONLY A HANDFUL OF DAYS? WE WILL BE CONTROLLING THE WORK.

CAN WE SHARE EMPLOYEE VACCINATION STATUS WITH MANAGERS SO THEY CAN ENFORCE ANY POLICIES BASED ON THAT INFORMATION, SUCH AS MASKING AND SOCIAL DISTANCING?

EMPLOYEES ARE SPENDING A LOT OF TIME ON THEIR PHONES (SCROLLING SOCIAL MEDIA, BROWSING THE INTERNET, LISTENING TO MUSIC OR PODCASTS). CAN WE PROHIBIT PERSONAL PHONE USE DURING WORK HOURS?

Likely not. The IRS, the U.S. Department of Labor, and state agencies have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with attention to who controls when, where, and how the job gets done, along with who has the opportunity for financial profit or loss. The timespan of employment is not one of those criteria. We recommend you review the criteria in light of what the role will be, but based on what you’ve said, the person hired will probably be an employee. You can learn more about the rules around independent contractors on the HR Support Center.

Answer from Kim, SPHR, SHRM-SCP Answer from Kara, JD, SPHR Answer from Rachel, SHRM-SC

Yes. Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management. However, you should not share this information any more widely than necessary. Vaccination status is medical information that must be kept confidential. While anonymized information is okay to share widely—e.g., “80% of our employees are vaccinated!”—each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly. Yes, you can limit or prohibit use of personal devices during work hours. Employees can be expected to give their undivided attention to the work you pay them to perform, and if that means phones need to be silenced or put away, you are entitled to make this request. An all-out ban on phone use may not be necessary, however. Periodic mental health breaks can actually improve overall productivity. And if an employee is able to work efficiently and not distract their colleagues while listening to music or a podcast, there’s probably no reason to prohibit them from doing so. However you decide to approach cell phone use during work hours, employees should be allowed to use them during their break and meal periods. This time needs to be truly their own in order to satisfy the requirements of many state laws. Be sure to outline your expectations in a handbook policy and distribute it to all employees.

What and when am I supposed to document?

by Curtis M. Pearsall, CPCU, AIAF, CPIA President – Pearsall Associates Inc. and Consultant to the Utica National E&O Program

Every E&O claim made has been impacted by the level of agency documentation in some way.

Use the opportunity to educate staff on what the expectations are for documentation. Document agency standards in writing for all employees to know, understand and follow to help avoid any confusion about those expectations.

Include items such as:

The “When” Issue. What is the expected time period for when telephone conversations should be documented in the agency system? Avoid statements like “as soon as practicable” because this could vary by agency staff member. Address the timeline for documenting meetings with customers, too. Ideally, document and take care of the task at hand by documenting immediately following a conversation with the agency customer or prospect, as details become less clear as other tasks and conversations take place during the day.

The “What” Issue. Issues include how coverage deletions should be handled, how and when to document when the customer declines a specific coverage, etc. The days of simply entering the discussion in the agency system are gone. Those discussions must be memorialized in an email back to the customer and include the key information. There have been situations where the customer, after suffering a loss, contradicts the information in the agency system. They may advise “I told you I wanted the coverage” when you heard the opposite.

The “How Much Detail is Needed” Issue. What is the expected level of documentation of a phone conversation? Include the actual name of the customer, as opposed to “insured,” as well as sufficient detail of the exact essence of the conversation. The

documentation should be such that another agency staff member could read the documentation, know exactly what was discussed, and any next steps or open items.

The “Abbreviation” Issue. What abbreviations are acceptable and which words need to be spelled out? Note the list of acceptable

abbreviations. If there is no abbreviation for a specific issue, then fully spell the issue.

The “Watch What You Say” Issue. A good rule for documentation: “Don’t put anything in the system that a jury shouldn’t read.”

For agencies with an audit process in place, adherence to documentation expectations should be carefully reviewed. For agencies without an audit process, at a minimum, someone in a management position should review file documentation to determine if the staff is meeting expectations. Auditing often (weekly, monthly) is a great way to reinforce positive behavior or conversely coach staff who are falling short of expectations. Strong file documentation will reduce errors and, if an E&O claim is made, favorable documentation

will help in the defense of your agency.

This is too important to leave to chance. As the saying goes:

If it is not in the file, it didn’t happen.

promise