Except for certain government contractors or some situations involving the use of fraudulent documents, employers do not need to update or complete a new Form I-9 when an employee changes their legal name or address. That said, the U.S. Citizen and Immigration Services (USCIS) recommends keeping correct information on Forms I-9 and taking steps to ensure a name change is legitimate. To update the employee’s original Form I-9, enter their new legal name in Box A of Section 3, and then sign, date, and print your name on the final line.
Category: Compliance & Legal
What are the basic steps of a harassment investigation?
Investigating a claim of harassment can be intimidating, but we have a great resource available on the platform called Identifying and Preventing Workplace Harassment. For this response, we’ve provided a condensed overview of the steps for an investigation:
- Select an interviewer. This person should be an impartial manager, company officer, or HR representative. Ideally, they have completed training on conducting a harassment investigation. They should approach the investigation process without a presumption of guilt or innocence and with a commitment to being fair and thorough. The investigation should be conducted as expeditiously as possible after receiving the claim.
- Conduct interviews and gather evidence. Speak with the employee who made the complaint (if known), the accused employee, and any witnesses named. The questions asked during the interviews should not lead an interviewee toward a particular response and should not be accusatory in nature. The questions should be unbiased, open ended, and prepared in advance; don’t be afraid to ask follow-up questions. Also think about any documents, emails, photographs, videos, etc., that might exist and assist you in coming to a fair conclusion in your investigation.
- Make a decision and take action. Once the interviews are complete and all evidence is gathered, decide what to do and document the conclusions and actions taken. If the company determines that the accused employee violated the harassment or other workplace policy, appropriate disciplinary measures should be taken. What qualifies as appropriate will depend on the severity of behavior. A summary of the findings should be placed in the accused employee’s file. The accused employee should be reminded that any retaliation against their accuser is unacceptable.
- Inform the employee who made the complaint. Alert the complaining employee—and others with a true need to know—about the conclusions reached in your investigation. While you don’t need to share the specific disciplinary action taken (if any), the complaining employee should be assured that you took appropriate steps to address the current situation and prevent future harassment. Remind this employee that retaliation will not be tolerated and that they should let you know if they feel they’re experiencing any backlash because of their complaint.
Founded or unfounded Harassment charges can become an employer’s worst nightmare, even for small employers. Harassment Training may not currently be mandated in your state you’re but if you’re ever faced with a complaint, and you haven not implemented precautionary steps of formal Harassment Training for both employees and management, you’re exposing your company to extraordinary risk. To learn more, schedule a brief 10-minute walk though to learn how you can minimize your exposure with a minimal investment.
We are about to hire our 15th employee. I heard that some federal regulations go into effect then. What do I need to know about these?
Once you have 15 employees, the federal laws below would apply to you. Here is a brief summary of what you need to know about them:
- Americans with Disabilities Act (ADA): Protects qualified individuals with disabilities from unlawful employment discrimination, prohibits discrimination where an individual is able to perform their essential job functions, and requires an employer to make reasonable accommodations for disabled individuals unless doing so would place an undue hardship on the employer.
- Genetic Information and Nondiscrimination Act (GINA): Prohibits the use of genetic information in employment and restricts employers from requesting or requiring genetic information.
- Pregnancy Discrimination Act (PDA): Protects pregnant employees from being retaliated against in any way due to pregnancy, child birth, or any related medical conditions.
- Title VII of the 1964 Civil Rights Act: Prohibits discrimination in all terms and conditions of employment (including pay and benefits) on the basis of race, color, national origin, religion, and sex (sex includes sexual orientation and gender identity).
Remember, there may also be additional state laws that apply as your company grows.
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.
What are employee classifications and how do I know if I’m doing it correctly?
Below is an overview of the federal Fair Labor Standards Act (FLSA) classifications. Each of your employees must be classified as exempt or non-exempt and I’ll provide the steps for proper classification and what each classification means below.
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.
An employee recently had a heart attack during his shift at our facility. Is a heart attack considered a work-related injury and can be claimed on Workers Compensation?
Since it sounds like the incident may have taken place on company premises, it is possible that it could potentially be covered under workers’ compensation so we would recommend that you reach out to your third-party workers’ compensation insurance carrier for guidance.
In general, injuries that arise out of or in the course of an employee’s employment are considered to be work-related. For the determination of workers’ compensation eligibility, an employer’s premises, including parking lots, would be considered within the zone of employment. If an employee was injured at work in the course of a heart attack while at work (such as falling and hitting their head) then it may be covered, An employee would have to apply for such a benefit and your third party insurance provider would then determine their eligibility.
We would recommend that you follow the procedures for an injury at work and let your third-party workers’ compensation insurance carrier determine whether or not it would be determined to be workers’ compensation. Even if an employee has not missed time for an injury the company may potentially need to cover the initial medical expenses.
Can we discipline an employee for working for another employer during FMLA?
Yes, in two circumstances. First, you can discipline the employee if their other job violates your outside employment (aka moonlighting) policy. Second, you can discipline an employee who obtained FMLA leave fraudulently. If, however, you do not have a policy that specifically prohibits employees from working for other employers or if the employee’s work for the other employer is compatible with their health condition, then the fact that they are employed elsewhere during a leave is not cause for discipline. For instance, if the employee works a physically demanding job at Company A that they can’t perform because of a medical condition, they may still be able to work a desk job for Company B during leave.
The FMLA specifically allows employers to hold an employee on leave accountable to their uniformly applied moonlighting or outside employment policy. On the flip side, employers without such a policy can’t deny FMLA leave, including job protection and benefits continuation, to an employee just because they’re working elsewhere while on leave—unless you’ve got a case of FMLA fraud.
If you don’t have a moonlighting policy (or do but it’s not uniformly enforced), then the only other way to discipline an employee for working for another employer during their FMLA leave would be if their second job indicates that the employee lied to you about their serious health condition. For example, if the employee’s FMLA certification states that they need to be on bed rest to recover from surgery, and the employee is performing physical labor at the other place, you’ve got a case of FMLA fraud. Fire away! In grayer situations, however, proceed with caution. The safest approach would be to require a recertification in light of the new information that casts doubt on the employee’s stated reason for leave or continuing validity of their original certification. Disciplining an employee on FMLA leave without knowing all the facts can easily give rise to an FMLA interference claim.
An employee is requesting copies of their harassment complaint and investigation files. How should I respond?
It depends. You can certainly share a copy of the original complaint with the person who filed it. You can also tell them about the general results and let them know whom they should speak to if the harassment continues.
You shouldn’t hand over investigation notes, witness statements, or other documentation. That information was shared with an expectation of confidentiality (at least whenever possible). Sharing would violate that trust and potentially deter employees from participating in future investigations. Likewise, the employee’s complaint shouldn’t be shared with anyone else. This, of course, includes the accused party. Aside from breaking confidence, it could lead to retaliation.
On a related note, since under state law personnel files may have to be provided to employees upon request, it’s best to keep investigation files separate from personnel files. It’s reasonable to include a copy of the general results of an investigation in the personnel file, but don’t include any complaints, investigation notes, or witness statements.
During an exit interview, a departing employee accused one of our managers of harassment. Should we investigate even though the accuser is no longer employed here? The manager has been with us a long time, and we’ve never heard any complaints about him before.
Yes, investigate the allegations even though the accusing employee has left the organization. If your investigation shows that harassment occurred, you should take the appropriate disciplinary action.
Federal law obligates employers to prevent or stop unlawful harassment. Harassment happens when behavior is unwelcome and based on a protected class such as race, gender, age, religion, national origin, or disability. It becomes unlawful when it is severe or pervasive enough to create a hostile work environment. In this case, since you’ve been made aware of alleged sexual harassment, failing to investigate the allegations could invite risk, especially if additional complaints are made against the same individual.
What are the basic steps of a harassment investigation?
When an employer receives a harassment claim, they have a legal obligation to examine the claim by conducting a thorough investigation. This includes the following steps:
- Select an interviewer. Typically, this person would be an impartial manager, company officer, or HR representative. They should approach the investigation process without a presumption of guilt or innocence and with the commitment to treat the situation as fairly as possible. Typically, the investigation can and should be conducted and closed within three days.
- Speak with the employee who made the complaint (if you know who they are), the accused employee, and any witnesses they name. The questions asked during the interview should not lead an interviewee toward a particular response and should not be accusatory in nature. They should be unbiased, open-ended, and prepared in advance. It’s also important not to promise a particular outcome to employees participating in the investigation.
- Once the investigation interviews are complete, document your conclusions and actions taken. If the company determines that the accused employee did in fact violate its harassment or other workplace policy, appropriate disciplinary measures may be administered. What qualifies as appropriate would depend on the severity of behavior; it may include termination of employment. A summary of the findings should be placed in the accused employee’s file.
- Inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken. Remind both employees that you will not tolerate retaliation.
- In some situations, it is advisable to separate employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.
