Risk management Archives - Miami Payroll Center

What Small Businesses Need to Know about this new round of PPP

January 11, 2021

On December 27, 2020, President Trump approved a $900 billion COVID-19 relief bill.

In it, Congress appropriates funds to help small businesses, nonprofits, and venues that continue to be hit hard by the impact of COVID-19 through The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the “Act”). The Act provides assistance to small businesses mainly by revamping the familiar Paycheck Protection Program (“PPP”). The changes to PPP are many and this article does not address every update. Rather, here are some highlights that you should know.

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COVID-19 Employer Resources and Compliance Toolkit

March 26, 2020

During these uncertain times, Miami Payroll Center is keeping up to date on all legislative and tax related responses to the COVID-19 crisis as they relate to small businesses and their employees. As additional information becomes available from related government agencies such as the Department of Labor and the IRS, this page will be updated accordingly.

On Wednesday, March 18^th, the President signed the Families First Coronavirus Response Act to take effect on April 1, 2020 and will sunset on December 31, 2020. The Act provides for mandated paid emergency sick leave and paid family and medical leave for many workers. To offset wages paid under the program, employers will receive a tax credit. There are still several uncertainties, such as the timing of the credits to offset the payments required by employers. Many of the details for implementation are still unknown until individual government agencies, e.g. DOL, IRS, release their own guidance between now and April 1, 2020. As additional details are released for implementation, we will update the information on this page.

If you have specific questions as to how these changes may affect your business, please contact us at 305-273-4066.

Useful Links

COVID-19 Miami Payroll Center Published Resources

IRS Updates

The IRS has established a special section focused on steps to help taxpayers, businesses and others affected by the coronavirus. This page will be updated as new information is available.

What your Managers need to hear about COVID-19

March 16, 2020

1. Do not ask your employees if they have COVID-19.

While you can visually see an employee coughing, sneezing, and generally feeling sick at the office and you are right to ask an employee to go home under these circumstances- remind your management team that they cannot ask an employee if they have a specific illness. The Americans with Disabilities Act (ADA) restricts the level of questions that an employer can make into an employee’s medical conditions, and you do not want to run afoul of the ADA. You can however ask the following general health questions of an employee- (1) Are you feeling alright?, (2) Are you okay to continue to work?, or (3) Would you like to go home and get some rest?

2. Can I ask an employee to get tested for COVID-19?

No, the ADA prevents an employer from requiring an employee get a medical exam unless (1) the employer can demonstrate the medical exam is job-related, or (2) the employer has a reasonable belief the employee poses a direct threat to the health & safety of the employee or others THAT CANNOT BE ELIMINATED OR REDUCED BY REASONABLE ACCOMMODATION (reasonable accommodation in this case being sending the employee home and preventing their coming in contact with other employees).

3. You cannot take an employee’s temperature to determine if they may be infected with COVID-19.

Again the ADA comes into play, as taking an employee’s temperature or performing any other diagnostic falls under the category of a “medical examination” under the act. Its best to leave the medical exams to the doctors and other healthcare practitioners.

4. Do I have to allow an employee to wear a face mask to work?

No. The Centers for Disease Control and Prevention (CDC) advises against wearing a face mask unless an individual is sick with symptoms of the virus or is taking care of someone with the virus at home or in a health care setting.

5. One of your employees tested positive for the COVID-19, now what?

In the case you have an employee inform you that they have tested positive for the virus, it is important to send the employee AND ANY OTHER EMPLOYEES WHO THEY WORKED CLOSELY WITH home for a 14-day self-quarantine period to try and prevent further spread of the virus. Remember again that the employee’s medical diagnosis is protected health information, and that you as an employer cannot disclose their positive test results to the rest of your staff. You cannot disclose the name of the employee to anyone else at your company or you risk running afoul of confidentiality laws. Employers should inform their employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

It is very important if the employee who tested positive for the virus was physically at your work site, that you take deep cleaning measures to eliminate the potential threat from all surfaces that the employee was in close contact to. If you work in a shared office space arrangement, contact management of the space and ask them if they can deep clean any shared spaces that the individual might have been in contact with.

After taking the measures above, it is imperative that you report the positive test to your local OSHA office which is attempting to track all of the COVID-19 cases. For example, positive test cases in South Florida should be reported to the Region 4 Offices of OSHA in Atlanta, GA-

Region 4
Atlanta Regional Office
(AL, FL, GA, KY*, MS, NC*, SC*, TN*)
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW, Room 6T50
Atlanta, GA 30303
(678) 237-0400 (678) 237-0447 Fax

If you are in another region of the country, you can find your OSHA region and contact information in the OSHA “Guidance on Preparing Workplaces for COVID-19” job aid.

New OSHA Requirements for 2017

February 7, 2017

The Occupational Safety and Health Administration (OSHA) requires employers with 10+ employees to record and report serious work-related fatalities, injuries and illnesses. Summaries must be posted annually from February – April, and records must be kept for five years.

Employers must also report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours.

Effective January 1, 2017 OSHA’s new reporting rule went into effect. The rule’s aim is to help improve safety for workers across the country. It’s especially important for certain South Florida employers.

The rule makes injury information available publicly in an effort to “nudge” employers to focus on safety. More attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.

The new rule requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry.

New Anti-retaliation Protections

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.

New 2017 Online Reporting Requirement

OSHA will provide a secure website that offers three options for data submission. First, users will be able to manually enter data into a web form. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically. The site is scheduled to go live in February 2017.

Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Need help with OSHA compliance?

Contact our HR team today by phone at 305-273-4066 or by email at info@miamipayrollcenter.com.

5 Ws That Are Key to Employee Investigations

May 23, 2016

While working at your office one day an employee quietly enters and closes the door behind him. He asks for a few minutes of your time, and detecting the urgency in his voice you grant him the time- he proceeds to tell you a harrowing tale of harassment and bullying allegedly going on right beneath your nose. Right now, he just wants you to do something about it. Time for you as a Manager to jump into action and immediately contact your HR Business Partner.

I cannot stress the importance of conducting a quick, thorough, and documented investigation into any and all claims of harassment by an employee. While HR professionals are trained to perform these investigations, Managers should at the very least be knowledgeable on the 5 Ws that will determine the success of said effort.

The 5 Ws refer to the questions that must be asked during any investigation-

Who – was there, who made the offending comment, who witnessed the comment being made, etc.
What – preceded the comment, what was said exactly, what do you think the offending party was trying to convey with the comment, what was hurtful about the comment, what did you do about being hurt at the time, what in your opinion would be the ideal resolution to this situation, etc.
When – was the comment made, when did you decide to complain, when did you tell the offending party that their comment was hurtful, etc.
Where – did the incident happen, where did you go afterwards, where did they go afterwards, etc.
Why – didn’t you tell them you were hurt by their behavior, why did you not say something sooner, why did you …, etc.

Your employee investigations should be executed quickly, your interviews well-planned and remember the 5 Ws. Your employees must perceive you as unbiased and objective in the performance of reviewing these claims- or you will not get the information or cooperation you need from them in order to get to the bottom of the situation. It almost goes without saying, but document every step along the way of your investigations and it helps if you always assume that the matter will end up in court.

Is love in the air at your office?

February 15, 2016

It’s Valentine’s Day, let’s recognize that love is not just in the air this time of year – it may also be in your office. Workplace romances are more common than you might think. Last year’s Vault Survey of Office Romances found that 51% of respondents had been involved in an office romance. The scary part is that 32% of those folks had a relationship with a superior or subordinate.

Before you change the annual Sexual Harassment Prevention training to the week of Valentine’s Day each year, let’s consider a more realistic option: A policy on workplace romance. This type of policy is an addition to your policy on harassment, not a replacement.

According to SHRM, when developing a policy on office romance, employers should consider both the legal implications associated with sexual harassment and retaliation claims under Title VII of the Civil Acts of 1964 and similar state and local laws, as well as the day to day events associated with consensual relationships in the workplace. A good policy starts with prohibiting romantic or sexual relationships between supervisors and direct subordinates. Preventing all office relationships seems improbable, but you can clearly identify workplace expectations.

Already have an office romance policy? If it hasn’t been revised in a while, now might be a good time to align it with your technology policy. If there is an office romance, it is likely to play out through an internal messaging system, e-mail, texting or social media. While your technology policy may already address the use of these in the workplace, your office romance policy can serve as a reminder of the policy and should serve to further minimize any expectations of employee privacy.

If you have an older “love contract” and not a formal policy, it’s time to rethink your approach. Love contracts were designed to allow employees to disclose their relationship and provide protection to the employer in the event that the relationship ended. While they may still have a place in your organization, a love contract alone will not shield you from liability.

As you rethink your current policy, or think about developing a new one, always remember to keep the culture of your organization in mind. While you have to abide by related laws, you should carefully consider what will fit your organization best.

A policy, a love contract and employee training might not sound romantic, but it’s a great Valentine’s Day gift for your business!

2016: It’s (Past) Time for a Social Media Policy

December 30, 2015

Say what you want about social media, but you can’t manage a business without addressing it in one way or another. Many, if not most, businesses have accepted social media as an important marketing tool. Others may still be in denial about its virtues. Whether you’ve embraced it as part of your business strategy or are still hoping it’s a passing fad, there is no doubt that you should adopt a social media policy.

There are numerous factors that can’t be ignored related to social media – productivity, privacy, legal issues, the reputation of your organization – just to name a few. HR Professionals should know that workplace culture is largely driven by conversations taking place on social networking sites, not at the water cooler. Encouraging employees to interact on networking sites can improve workplace culture and the image of the entire company. The plan should be to use social media to your advantage.

Regardless of the size of your organization, developing a social media policy is likely in order. If nothing else, a formal policy will serve as a reminder that social media activities can have both expectations and consequences and at the very least a policy will alert folks to use a little common sense when it comes to using social media.

So what should your social media policy include? Well, first and foremost is must be readable by your employees. Beyond that, you should consider including:

Who can speak as a representative of your organization. This is especially important for those wanting to respond to negative comments, media requests, etc.
The responsibilities of the employee. Specifically mention personal responsibility regarding what they post and the consequences of improper posts. While you don’t want to get into the argument over free speech, you can easily point out that posts that can be considered as harassment or bullying of other employees will not be tolerated.
Privacy. Be clear about information that cannot be disclosed for privacy or confidentiality reasons. Keep in mind that sharing information about compensation, working conditions and manager performance may be considered protected speech that cannot be restricted.
Productivity expectations. Don’t be fooled into thinking that restricting social media use would improve productivity. That plan would likely backfire. Trying to prohibit social media is not a reasonable way to address productivity issues, but your policy should state that social media should not interfere with meeting productivity or performance requirements.
Policy Enforcement. Explained how you plan to enforce the policy and the consequences for not following the policy.

The National Labor Relations Act (NLRA) protects the rights of employees to act together to address conditions at work. According to The National Labor Relations Board (NLRB), this protection extends to certain work-related conversations conducted on social media. A few years ago the NLRB issued a report on social media policies with the two main points being:

Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

You can visit the NLRB fact sheet on the subject by clicking here.

Social media is not going away anytime soon. If you haven’t already established a policy, include this as part of your plan for the coming year.

Happy New Year!

Store or Delete? How Long Should We Keep HR Records?

December 7, 2015

As the beginning of a new year approaches, many of us will try to organize our offices, de-clutter both our physical desktop and our virtual one, and simply get rid of the unnecessary. One thing that Human Resources is known for is lots and lots of paperwork. While a large part of it is stored electronically these days, it’s still there, taking up space. Hey, record keeping is part of our job – we need to keep those records! That’s true. But are we keeping them longer than necessary?

Before we talk about how long to hold onto certain items, a quick reminder of the types of information that should be in an employee’s personnel file: Only information that can be legally used as a basis for an employment-related decision should be in an employee’s file. That means that information related to EEO, disability records and wage garnishments – all things that we cannot base employment decisions on – should be in separate files. A good practice is to keep I-9s in a separate file as well.

The list below outlines a few of the federal guidelines, although it is important to note that if state guidelines are different, you should pick the one with the longer time frame. Better to keep it longer than necessary than not long enough. Of course, some industries or circumstances come with their very own sets of requirements (such as Federal Contractors) and those do not follow the guidelines offered below.

Hiring Records – 1 Year. Yes, you will need to save all of the cover letters, resumes, interview notes, etc. from the hiring process for one year after the hiring decision is made. Among other things, this serves as a means to protect businesses from claims of discrimination.
Basic Employee Documentation such as I-9s or work permits for minors – 3 years after hire or 1 year after termination, whichever is longer.
Drug Testing – 1 Year (longer for transportation related jobs). If you require drug testing as part of the pre-employment process, then it is considered part of the hiring process (See first bullet). If you do additional drug testing after employment has commenced, you will need to maintain these records for one year as well.
Payroll Records – 3 Years Minimum. Payroll records include daily schedules, regular rate of pay (and basis for determining it), overtime pay, weekly compensation, amounts and dates of payments, daily and weekly hours, overtime hours and pay, annuity and pension payments, benefits, deductions and additions and more. Please note that 3 years is the minimum time to hold on to these records. In our highly litigious workplace, the best practice is hold on to them for at least five years after termination!

There are many more types of records that we hold on to, and each has guidelines regarding how long you need to retain them.

Attendance at the Holiday Party is Optional…. But We EXPECT you to be there!

November 22, 2015

Are you ready for the annual holiday party? In today’s multicultural, highly litigious workplace, some employers have chosen not to celebrate the holidays at the office at all. Trying to figure out how to celebrate Christmas, Hanukkah, Kwanzaa, Ramadan, and Bodhi Day in one event is reason enough to consider pulling the plug on holiday celebrations altogether. Still, it’s hard to break a habit and many businesses still revere the party as a time honored tradition to be upheld. Not all employees, however, may be eager to attend.

Holiday_Party While employers don’t normally require their employees to attend a holiday party, many strongly encourage it, creating an expectation of attendance. If you’re one of those organizations, we suggest you reconsider the message on your holiday party invitation for two reasons. The first is related to liability and the second is related to wage and hour laws.

As an employer, your liability for something that happens at a holiday party is going to depend primarily on whether the party can be considered within the course and scope of employment. If employees are required or expected to attend, then it’s a safe bet that the party is within the course and scope of employment. If an employee is injured at your party it could be compensable under your workers’ compensation policy. If an employee hurts someone who is not an employee, you could be legally responsible for their negligence.

If there is no expectation of party attendance, then the party may not be in the course and scope of employment, which may relieve you of some of these liabilities as an employer (Of course, an employer can always be held liable for harm resulting from negligence).

No one expects to pay employees an hourly rate for attending a party, but if non-exempt employees are required or expected to attend then, by law, you should pay them for the hours they attended the party. If those party hours, on top of their normal work hours, put their weekly hours over 40, you could find yourself paying overtime for party attendance.

If there is no expectation of party attendance then you shouldn’t have to pay for the party time unless the employee performed actual work. Two months ago we posted about meal breaks, and the same concepts apply here. If you have your staff working at the party to register party-goers, hand out name tags or table numbers, decorate or perform any other duties that you assign to them then, legally, they should be paid for their time.

So make your holiday party optional…the fun people will attend regardless and you will have two fewer headaches to worry about!

Merry Christmas everyone.

Avoiding a Halloween Scare

October 21, 2015

It’s that time of the year again- Halloween, also known as “All Hallows’ Evening”. Many a CEO or business owner is tempted to let employees “dress up” for the day, humanize the workplace a little bit. Allow their teams to display some personality, and bring some pizazz to the office. Overall, this is not a bad time of the year to allow a little fun.

Don’t let the fun turn into a nightmare scenario for you. When adults come out and play, Halloween costumes can get overly sexy (I know, I know- you’ve never seen this happen), or mock racial, religious, or political beliefs that may offend another employee. Before you know it, you’re getting served with a workplace discrimination lawsuit. How can you avoid this spooky situation, and still allow for a little fun at the office?

As with most things Human Resources related, an ounce of prevention is worth a pound of cure. While you cannot completely eliminate the risk that an employee will get offended, you can certainly mitigate that risk by following a few easy steps.

First things first. If you’re going to allow for a little fun in the workplace this Halloween, communication with your Managers is key. Meet with your Management staff and Elvira discuss the holiday, and how some in the workplace might find the holiday objectionable due to their religious beliefs. For this reason, Managers should communicate to their teams that it is perfectly okay NOT to participate in dressing up to work on that day, and if an employee requests to work from home and it won’t impact their work- this reasonable accommodation should be made. Any costume contests, office décor contests, parties, or activities related to the holiday should be communicated to staff as “voluntary” and no employee should be forced to partake.

Next, you should communicate that Halloween is not a day (or an excuse) to toss the company dress code out the window. While it is okay for them to dress up, it should be communicated to all staff that the main parts of your company’s dress code will still be enforced. You want to get the message across to your staff that costumes that may offend a colleague, or worse- a client, will not be tolerated. Period. If possible, give examples of costumes that comply with your dress code, and those that don’t. I suspect this being a Presidential election cycle and with the new Star Wars movie set to be released in December, you’re going to be seeing a lot of Donald Trump and Hans Solo costumes.

Lastly, I can guarantee you that even though you take the two necessary precautions above- someone will still end up coming to work in an inappropriate costume. Consider when communicating the Halloween holiday’s work rules for the day asking those employees who will be coming in costume to bring a change of clothing in the event their chosen attire is deemed inappropriate. Also inform them that not doing so may result in their being sent home for the day should their costume not meet the company’s communicated guidelines.

I know what you’re thinking, all this for a day of fun? Yes, and believe me- you’ll thank me if you still end of with the nightmarish scenario of having an employee file a claim.

Is it Time for Employment Practices Liability Insurance (EPLI)?

August 21, 2015

The threat of being sued by an employee is an everyday reality for business owners, and small/mid-sized businesses are no exception. It only takes one event to turn a once happy employee into a disgruntled worker. Thinking you might be safe since you have a small, loyal staff? Think again. While your current staff may be happy and loyal, the threat of a lawsuit can come from past, present and even prospective employees.

Scales The idea that you could be sued by someone you’ve simply interviewed as a prospective employee may seem absurd, but employer liabilities begin before the employment relationship begins. Prospective employees can claim that you failed to hire them for an illegal reason such as their age or gender. Even though this claim may be hard to prove, it can still result in costly legal fees for your business.

Law suits from prospective employees are not extremely common, but law suits from current and former employees seem to be a mainstay in our current business climate. Employees who are terminated, passed over for promotion, or who feel harassed or slighted in some way may all take legal action.

One way to help mitigate the risks of an employee lawsuit is by purchasing Employment Practices Liability Insurance (EPLI). EPLI protects businesses against claims that the company is violating employee rights. While policies differ, EPLI in general will reimburse for court fees, judgment amounts and legal defense costs whether the company wins or loses. If you believe your current insurance already provides this coverage, be aware that many general liability policies exclude employee lawsuits and discrimination charges.

Every employer, regardless of size, can be the target of legal action. While cases against large, nationwide employers seem to be the only ones to make the headlines, insurance industry data suggests that mid-size business, those with at least 15 but no more than 250 employees, are sued frequently by current and past employees. These employees can often file a lawsuit without bearing any of the cost or risk involved.

According to the Conflict Solution Center, a nonprofit organization specializing in workplace mediation, the average cost to litigate an employment practices claim is $160,000. That doesn’t include settlement or judgment costs. When you start to think about the impact of those costs on your business, it makes sense to consider adding EPLI to your risk management strategy.

Speak to your insurance professional to see what your current coverage will cover and determine if EPLI is right for your business. Alternatively, give us a call at (305) 273-4066, and we would be more than happy to refer you to an insurance professional who will work with you to review your options for this type of coverage.

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On December 27, 2020, President Trump approved a $900 billion COVID-19 relief bill.

Useful Links

COVID-19 Miami Payroll Center Published Resources

IRS Updates