Is your workers' comp carrier also verifying your employees' eligibility to work?

Some insurance companies may be denying payment of benefits on the basis that unauthorized workers should not have been employed in the first place and thus are not eligible to be returned to work (or receive payments for the difference in wages for light duty work versus the employee's regular position). How does the company know that the worker is unauthorized? Well, some may be running the Social Security Numbers of your employees through either E-Verify or the Social Security Number Verification Service. [An aside:  neither program authorizes its use for that purpose, and the SSNVS handbook specifically prohibits third parties, i.e., someone other than the employer, from using it to take action that might be deemed adverse to the employee.]

This can create several issues for employers. First, an employer could have some liability to the employee if the employer knows that the SSN is being used for an improper purpose. Second, if the carrier makes the employer aware that the SSN was returned as mismatched or that the carrier has reason to believe the employee is not authorized to work, the employer must determine what steps it wishes to take to further verify employment eligibility. If it doesn't take any steps, it runs the risk of being considered "on notice" that a potentially unauthorized worker is in its employ.

Employers should consider periodically informing the carriers that any information provided is to be used for its authorized and intended purpose only. Taking it a step further, employers could also provide a statement to the carrier that the SSN is not to be used for any unauthorized purpose, including specifically any attempts to determine the work eligibility status of the employee.

In the FYI category--Tennessee's workers' compensation statutes provide that unauthorized workers are still eligible to receive certain benefits. The law places a limit on the amount of those benefits that can be awarded versus what would be available to an authorized employee. [See T.C.A. 50-6-241(e)(1)]

Need evidence for a Wage & Hour Lawsuit? There's an app for that.

The United States Department of Labor announced yesterday that it has developed an “app” for smartphones that is designed to help employees keep track of their hours worked and calculate their wages and overtime pay. This free app is available for download on the DOL’s webpage. According to Secretary of Labor Hilda Solis, “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

This is a development that employers should be aware of and pay attention to. The DOL’s app is really a convenient way for employees to collect evidence to support a wage and hour complaint and/or lawsuit. In fact, the DOL has practically admitted this. In a news release, the DOL stated that “This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” In other words, the DOL would rely on employees’ records where the employer has not maintained accurate records of the hours an employee has worked. Even for those employees who are not as tech savvy, the DOL has developed a printable work hours calendar for employees to use to track rate of pay, work start and stop times, and arrival and departure times

It is easy to imagine a situation where an employee’s records using a smartphone app or paper calendar are different from the employer’s records, and create a conflict as to how much the employee is owed. To lessen the threat of a successful wage and hour lawsuit based on the employee’s independent records, some employers may choose to require employees sign time sheets and pay stubs to verify that the employer’s record of the employee’s hours and wages are accurate. In light of the DOL’s announcement, now is a good time for employers to ensure that they have properly classified employees as exempt or non-exempt, are paying employees properly for all time worked, and are maintaining accurate records related to employees pay.

When on the phone means on the clock

I remember the days before smartphones, when I could only access my e-mail remotely from a laptop. I yearned for one of those cool little phones that would let me immediately respond without the need for lugging around my laptop, opening a VPN connection and logging on. And now I have it--check that: I've had it for several years. And I find that I now yearn for those times when I can power down the cool little phone and disconnect from work. But that's about all I need to worry with as an exempt employee.

What about those employees who are non-exempt and have those cool little phones with remote e-mail access? They, too, may have the longing to disconnect and not do work. Employers should have that desire for the non-exempt employees as well. Otherwise, employers could be facing unpaid time claims (including overtime claims) for time spent by non-exempt employees checking their work e-mail accounts.

Even in situations where the smartphone is the non-exempt employee's personal phone and not company-issued, the employer can still have liability for time spent on the smartphone performing work-related tasks. If the employee uses it to do work on the company's behalf, that is compensable time under the Fair Labor Standards Act (that whole "suffer or permitted to work" thing).

So, what to do? Here are a couple of thoughts:

• check your e-mail use/electronic communications policy to ensure that you have advised employees that they have no expectation of privacy in their company e-mail accounts--regardless of how the accounts are accessed
• update your timekeeping policy, e-mail policy, etc. to prohibit unauthorized time worked after hours, and remind employees that any work which might result in overtime should be approved first
• most e-mail programs have a setting that allows you to schedule when particular messages will be delivered. Train your supervisors how to use that setting so that e-mails which are being sent to non-exempt employees are delivered during normal working hours
• prohibit employees (exempt and non-exempt alike) from having remote access to the e-mail accounts without prior permission (which gives you some control over who has the ability to check e-mail during off hours)
• remind non-exempt employees that they are to record ALL time worked, including those seemingly small, incremental periods during off hours when they are accessing e-mail remotely
• perform overtime/timekeeping audits periodically; this will also help you discover any patterns in e-mail usage that you can then use to better control remote access
• if you find an employee has violated your policies and established expectations, counsel the employee on the appropriate conduct.

If you haven't updated your electronic communications policy recently, or your timekeeping/overtime policy, now is a great time to do that. It provides you with a forum to remind employees of the company's expectations.

Timing IS everything

I love it when I'm scheduled to give a speech, and someone more famous than I (that doesn't take much, mind you) gives me fodder to present as an example.

This time, it's my speech on dealing with the borderline employee. One of the building blocks I recommend to my audience is the concept of time. More specifically, I encourage the audience to review the calendar before it metes out discipline or informs an employee of his/her termination from the job. It isn't wise to terminate close to a holiday or on an employee's birthday, as examples.

Enter The University of Tennessee Athletic Director Mike Hamilton.

Mr. Hamilton has experienced his share of gray-hair-making moments since he hired Lane Kiffin to be football coach in 2009. Most of those occurred on the football side of operations until men's basketball coach Bruce Pearl was caught in a lie to NCAA investigators during a 17-month investigation of the program.

The AD has done a respectable job of making appropriate comments concerning the future of the basketball program and its big personality coach in Pearl. That all changed on Wednesday, though. During a radio interview on a Knoxville station, Hamilton stated that he was unsure of Pearl's future with the program. This is the first departure from the stoic support received by Pearl since the NCAA investigation was revealed.

Search the words "Mike Hamilton Coach Pearl", and you'll be directed to a page-worth of articles concerning the "uncertainty" of Pearl's future, how it appears that the Vols' foes extend beyond their first-round tournament match-up with Michigan, that the "jury is out" on Pearl's job. . . you get the idea.

Timing really is everything. I can't help but scratch my head and wonder what motivated Mr. Hamilton to make those comments this close to the Vols' NCAA tournament appearance. Many sports analysts stated that the Vols needed to make a deep run in the tournament in order for UT's fans to be appeased (i.e., give Mr. Hamilton any shot at making the case for Pearl to keep his job, regardless of the velocity of sanctions that are forthcoming from the NCAA).

Prior to those comments, most would have thought that UT was more than fair to Pearl in extending him the grace it has thus far. Mr. Hamilton might have timed his comments well enough to now place the martyr crown on Pearl's head. And those who attended my presentation today know that doing that serves to take away power from the employer and give it to the borderline employee.

It will be interesting to see what unfolds from all of this. The possible gains from the timing of this statement are lost on this employment counselor, but that doesn't mean they don't exist. I just can't imagine what they are (save from someone already informing Mr. Hamilton that he has lost his job and he feels that he has nothing to lose). Mr. Hamilton has given the predictable, "My comments were misinterpreted" explanation for the internet wildfire that surrounds him. Maybe I'll send an invite to Mr. Hamilton next time I give the presentation. It's the least I owe him after he provided me with such fine material.

The line is blurry: personal vs. professional in social media

In case you missed our last post about the less-than-defined line between the business you and personal you in social media, take a gander at this article from Forbes about tweets which cost some tweeps their jobs.

So much social media, so little time

I just read (thanks, @MollyDiBi) about an attorney in Indiana who was fired for tweeting his views on how pro-labor protesters in Wisconsin should be handled. Perhaps an employee management course is in order for him? But I digress.

I read about this shortly after giving a presentation to a client's workforce about social networking, the workplace, and the blurry line that defines who they are professionally from who they are personally.

Some employees think it's unfair that they aren't allowed to "speak their minds" on matters that are important to them. I fall into that category from time to time (more so during The University of Tennessee's football season than other times of the year). The reality, though, is that we are "followed" by more than just our closest friends on Facebook, Twitter, LinkedIn and blogs. Thus, many people don't know us well enough to understand when it is "Laura A. Steel, attorney at law" speaking versus "Laura Steel Woods, rabid UT fan" speaking.

And that's our trade-off for participating in, and allowing employees to participate in, the social media web. I'm fine with that exchange since I understand my firm's policy on taking stands and sharing views. Are your employees familiar with your policy? If you aren't sure, it's best to over-educate than to learn the hard way that someone thought her innocuous post about the Communism-inspired traffic light cameras actually stirred up a little trouble in the community.

An employee filed a complaint? Facebook probably isn't an appropriate place to vent. . .

Even though it's turning the tables a bit, one would think it goes without saying that managers/employers should not use Facebook to comment on employee complaints. Well, apparently, it doesn't:

http://www.pittsburghlive.com/x/pittsburghtrib/news/s_717409.html