In "Other Duties as Assigned," HR Dive's lead editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: longstanding practices that need a second look.
But each year, new litigation trends emerge, creating an opportunity for HR professionals to do some reflection and consider whether longstanding practices need to be examined in a new light. With less than 10 weeks left before 2020, three key issues came to the forefront this year that may need some attention: timekeeping, leave and recruiting.
1. Rethink your timekeeping practices
2019 brought several settlements that stemmed from unpaid wage claims. Perhaps most notably, a Nevada medical center in May agreed to pay up to $4.25 million to settle a wage and hour suit that involved about 600 employees. The workers alleged they worked off the clock because the employer automatically deducted a 30-minute lunch break from their work hours, regardless of whether they actually took the break.
Building breaks into your automated timekeeping system sounds like a great idea. No need to worry about anyone accidentally taking a paid lunch break, putting themselves over 40 hours for the week and triggering overtime pay. No flood of employees at the end of the day who forgot to clock back in after lunch and now need a manager to adjust their hours.
But this practice — exceptions timekeeping — comes with some pretty big downsides. To be clear, it's not illegal. Federal regulations say that when it comes to an employee with a fixed schedule, it’s fine to maintain records showing the schedule the employee normally works — as long as he "indicates by check mark, statement or other method that such hours were in fact actually worked by him, and [in] weeks in which more or less than the scheduled hours are worked, shows that exact number of hours worked each day and each week."
But one misstep and you’ve violated the FLSA. Multiple missteps and you’ve got a collective action on your hands. Are there situations in which exceptions timekeeping can work? Sure. But that path requires a great deal of training for front-line workers and managers and a culture of accountability. If the questions HR Dive receives from readers are any indication, that's easier said than done.
2. Equalize your parental leave policies
The following month, on the heels of similar settlements, JPMorgan Chase agreed to pay $5 million to settle a class action lawsuit filed by male employees who alleged the company's paid parental leave policy amounted to sex discrimination because it provided men less leave than women.
Not that long ago, many wouldn't have given a second thought to longer leaves for women. But when you think about, it becomes clear that these men have a persuasive argument. Federal law doesn't allow employers to deny workers equal benefits based on a protected characteristic, plain and simple.
Of course, we're only talking about bonding leave. Employers are free to provide additional recovery leave to birth mothers, but it needs to be based on that medical event, not gender. For example, an employer could offer four weeks of paid recovery leave to birth mothers and an additional eight weeks to all parents (including fathers, birth mothers, adoptive mothers, foster mothers and non-birth mothers). Still sounds complicated? Think about it this way: a policy that bases leave length on gender will yield some odd results. Mothers in same-sex relationships who did not give birth would get more bonding time than fathers who similarly did not give birth. And adoptive mothers would get more bonding time than adoptive fathers. If that's not perpetuating gender stereotypes about domestic duties, I don't know what is. Experts say it makes sense to base your paid time off on an event, not gender.
One more thing: Remember that the Family and Medical Leave Act provides many employees 12 weeks of unpaid leave for these events. The employer policies we're discussing here refer only to employers' voluntarily provided paid leave. Generally, you'll want to run these concurrently — and it's important to ensure your handbook doesn't overpromise here.
3. Know where your recruiting resources go
Finally, a few age-related legal actions may spur some changes to HR's recruiting practices. Earlier in the year, a federal district court certified a class of over-40 workers who alleged that PwC discriminated against older applicants by focusing its recruiting efforts on college campuses and job sites.
Separately, the U.S. Equal Employment Opportunity Commission said it has reason to believe discrimination took place when a handful of employers, including Capital One, targeted Facebook job ads to men and younger users.
It remains to be seen whether the PwC applicants will prevail and whether Capital One and the others will fight the EEOC's allegations, but it's likely time for HR to take a step back and review where its recruiting resources are going. If talent acquisition efforts seem to be focused on young talent, it may be time to spread recruiting time and dollars around a bit more.
And while you're at it, give those job ads a look to make sure they don't include any dog whistles for age discrimination.