Employment Law Tips Part 2

Zimmerman & Steber Legal Group, SC

By: Neil L. Wojtal

Hiring Practices (cont.)

E.     I-9 Forms: Another form which is required to be completed at the time of hiring is the I-9 form issued by U.S. Citizenship and Immigration Services (USCIS). USCIS is part of the Department of Homeland Security. Given the emphasis on homeland security after the 09/11 attack, there can be serious penalties if an employer fails to maintain an I-9 form for each employee they hire. The latest I-9 forms can be found at:         

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

Read the instructions carefully to make sure you are completing the form correctly.

Note that employers can sign up with the USCIS E-Verify Program. E-Verify is a voluntary internet based system that compares information from an employee's Form I-9 to data from the U. S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. For more information go to http://www.uscis.gov/portal/site/uscis and click on "E-Verify Homepage" in the right hand column.

F.     Personnel Files: How and where you store your employee files is also important. Proper record keeping for all employees is essential. Employers with more than 15 employees are subject to the Americans with Disabilities Act (ADA) which requires separate personnel files for each employee for the purpose of segregating medical information from non-medical information. The medical information files must be maintained in a safeguarded place and access to the files must be limited to those persons authorized under the ADA to obtain such medical information. More information on the ADA can be found at:

www.ada.gov/business.htm

You can also find an ADA Guide for Small Businesses at:

www.ada.gov/publicat.htm

G.     Recordkeeping Requirements: In addition to maintaining the forms described above, employers are required under state and federal law to maintain specific information about each employee they employ. These records are required to be kept for at least three years. The requirements are listed at on the Wisconsin Department of Workforce Development website along with other useful information for employers in ERD Publication-4906-PWEB. You can reach this information using the following:

http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_4906_pweb.pdf

H.     Handbooks and Manuals: All employers who use any employee handbooks or manuals that set forth policy should include language in your handbooks or manuals that preserves the “at-will” status of their employees. If you include mandatory disciplinary and termination procedures in your handbooks or manuals you must follow those procedures for each employee making sure that all steps are followed. Deviations from written policies and procedures can lead to claims of discrimination from individual employees.

II.                COMPENSATION ISSUES

The next step is to review your compensation policies and procedures.

A.     Minimum Wage: The general minimum wage requirement, effective July 24, 2009, in $7.25 per hour. This wage rate applies to most employees although there are some exceptions. The Wisconsin minimum wage rates can be found at the DWD website at:

http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_9247_p.pdf

B.     Exemptions and Overtime:  Compensation claims can arise when employees are misclassified as exempt from overtime when the employee’s duties and wage payment method clearly indicate that they are hourly employees subject to overtime. The rules for exempt/non-exempt classifications and overtime calculation requirements are found in the Wisconsin Administrative Code, DWD 274.04 and in the Fair Labor Standards Act regulations at 29 C. F. R. 541 et seq. There is a helpful publication available online from the DWD entitled “Wisconsin Hours of Work and Overtime Law” located on the DWD website at: http://dwd.wisconsin.gov/er/labor_standards_bureau/publication_erd_8298_pweb.htm

This publication also lists the timekeeping requirements in Wisconsin. All time that an employee works must be recorded.

       

Another useful publication is the “Fact Sheet on Payment of Salary” located at: http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_13109_p.pdf

During your review of your wage payment policies, you should identify which employees are not paid overtime and you should review the rationale used to make this determination. Many employers erroneously consider the term “salaried employee” to be synonymous with “exempt employee”. This is not the case. The “Wisconsin Hours of Work and Overtime Law” publication cited above points out the criteria an employee must meet to be classified as exempt. You should review your payment policies and procedures to make sure that all federal and state overtime laws are being followed.

C.     Wage Deductions: You should review ERD Publication 4906, cited in I, G   

above, for the state rules concerning wage deductions. You can also find this information in the Wisconsin Statutes in Sec. 103.455. Generally, unless the employee agrees, you cannot deduct from the employee’s wages for defective or faulty workmanship, lost or stolen property or damage to property.

Part 3 to follow