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Special Report — Complying with Wage and Hour Regulations (Part 3 of 3)

The SESCO Report July/August, 2022 (Part 3 of 3)

Common Misconceptions and Compliance Issues

SESCO is available through a Professional Service Agreement or through a per diem fee to conduct a thorough Wage and Hour as well as HR and employment law audit. Contact SESCO to learn more about our Professional Service Agreement and services provided to clients in all industries across the country — [email protected] or 423-764-4127.

Calculating Overtime

Misconception 8: We have multiple locations and at times require our employees to travel to other sites during their work day. We require them to clock out when they leave and clock back in when they arrive at the new location. As such, we do not have to pay for this drive/non-working time. Travel to and from work or travel outside the normal work day is generally not considered compensable time. However, travel time must be counted as hours worked to include:

  • It is time spent traveling from one work site to another
  • It is driving even after hours to fulfill an employer's requirements or requests such as going by the bank on the way home
  • If the employee has gone home from work for the day but is called out again to travel, this would be compensatory.

Misconception 9: Sometimes we offer training to our employees. Since we are paying for the training and they are not doing any work, we do not have to pay our employees. Anytime an employer requires an employee to attend training during working hours, that time will be considered working time. Training is not considered hours worked if all of the following conditions are satisfied:

  • Meetings are held outside of hours worked
  • Employee attendance is completely voluntary
  • If an employee does not show they are not disciplined in any way
  • The training is not directly related to the employee's job
  • The employee does no work during the training time
  • The course or training is held after work hours and is not a requirement of the job even if the subject matter pertains to the job.

Misconception 10: We have to use a time clock or electronic timekeeping system to keep track of the hours of our nonexempt employees.

The DOL states that employers may use any timekeeping method that they choose. This would include allowing employees to record their hours of work by hand. Regardless of the method, SESCO always recommends that the employee and manager/HR Director sign off agreeing that true and accurate hours of work have been recorded.

Misconception 11: Our company supports our community in a number of different ways to include supporting charities. We recommend to our employees that they should volunteer. As it is not working time, we do not have to pay them.

Charitable work performed at the employer's request as part of the job or during working hours is considered work time. Charitable work/volunteering will not be considered hours worked if:

  • It is completely voluntary (even if the program is sponsored by the employer)
  • It is performed outside of scheduled working hours

If employees get the impression that their jobs would be in jeopardy in any way or that they would receive fewer perks for failing to contribute to charity work, a court could say that the hours were not voluntary but were coerced. In addition, employees cannot perform volunteer work for an organization that employs them if the work is similar to that for which they are paid.

Misconception 12: We pay our employees bonuses and incentives for things such as meeting production goals, good attendance, good safety goals, etc. We are not required to pay overtime on these additional earnings.

There are technically two (2) different types of bonuses which include discretionary and non-discretionary. Discretionary bonus payments are completely that, discretionary. These bonuses are not communicated to employees, employees are not working towards accomplishing goals to receive the bonus and these bonuses are not regular and recurring. Typically defined discretionary bonuses which would not be required in overtime calculations are such as Christmas bonuses. Non-discretionary bonuses are required to be included in overtime payments. Non-discretionary bonuses are bonuses that incentivize an employee's behavior or production. These monies must be included in the regular rate for the purposes of overtime. Even if these non-discretionary bonuses are paid on a monthly, quarterly or even an annual basis. An employer is required to go back and roll these non-discretionary bonuses into each workweek and calculate overtime on these bonuses. If your organization pays these non-discretionary bonuses to employees, you should contact SESCO to learn more about the calculation of overtime as well as request SESCO's staff recommendation which will provide an "easy" method to calculate the overtime due.

 

Given Regulatory Uncertainty, Hospital-At-Home Models Are Losing Momentum

Home Health Care News | By Andrew Donlan
 
The Centers for Medicare & Medicaid Services (CMS) gave health systems and providers the ability to take hospital at home as a concept and run with it during the public health emergency (PHE).
 
Those providers did so, and now they’re wondering what comes next. With regulatory uncertainty moving forward, the hospital-at-home momentum has been put on pause – but not because of patient preference or provider enthusiasm.
 
“There is over 250 hospitals and 100 health systems across 30-plus states that have now been granted CMS waivers,” Biofourmis CMO and co-founder Maulik Majmudar said on a Moving Health Home webinar Tuesday. “However, it is also clear that a sizable part of the country does not have any offerings today. And more importantly, the number of CMS waivers granted in the last few months has been on a decline.”
 
The Boston-based Biofourmis is a tech-enabled at-home care enabler. The startup recently reached unicorn status.
 
Indeed, there are plenty of hospitals that have been approved to provide hospital-level care in the home under the CMS waiver. But many have not begun to do so given the regulatory cliff they face. The Acute Hospital Care at Home waiver is tied to the PHE, which could be ending by the end of this year.
 
Some health systems have found other mechanisms to provide hospital-at-home care independent from the waiver. There is also introduced legislation that would extend the Acute Hospital Care at Home waiver by two years past the PHE. But nothing yet has been set in stone.
 
And thus leads to the halted momentum: only two hospitals in the country have treated more than 2,000 patients under the hospital-at-home waiver, according to Majmudar.
 
“The key point is that there’s a lot of opportunity and room for technology to drive both safe and effective deployment of these programs, but especially in a way that allows us to achieve scale,” he said.
 
The resulting hesitation from the regulatory holdup has spurned innovation, and also providers’ ability to learn from their mistakes on the fly as they scale.
 
At the same time, there are health systems – like Advocate Aurora Health, for example – that love the opportunity to provide this care in the home, but not exactly as its allowed right now under the waiver.
 
“We certainly support the continuation of the waiver,” Dawn Doe, the VP of value-based programs and continuing health at Advocate Aurora Health, also said on the webinar. “But we ask for more flexibility on the structure, and the entities that can provide the program, for us as an integrated health system.”
 
For instance, as currently constituted, the waiver makes it so Advocate Aurora Health is forced to have its 27 hospitals all have different hospital-at-home programs.
 
That, Doe said, just doesn’t make sense for Advocate Aurora based on how it’s structured.
 
“We would like to see reimbursement models that really provide patients the ability to stay in their home while avoiding expensive institutional care,” Doe said. “And that the waivers for telehealth and remote monitoring reimbursement be made permanent. This not only improves patient outcomes, but will also address the strain on staffing resources.”

Read Full Article

 

A Closer Look at Falls and Falls Prevention

All older adults should be screened for risk of falling. With National Falls Prevention Awareness week happening in September, here's a recap of reasons why and resources to help PTs meet that standard.

Read Article 

 

U.S. FDA Green Lights Omicron-Targeted COVID Boosters Ahead of Revaccination Campaign

Reuters | By Michael Erman and Julie Steenhuysen

Aug 31 (Reuters) - The U.S. Food and Drug Administration on Wednesday authorized updated COVID-19 booster shots from Pfizer (PFE.N)/BioNTech (22UAy.DE) and Moderna that target the dominant BA.4 and BA.5 Omicron subvariants, as the government prepares for a broad fall vaccination campaign that could begin within days.

The new vaccines also include the original version of the virus targeted by all the previous COVID shots.

The FDA authorized the shots for everyone ages 12 and older who has had a primary vaccination series and is at least two months out from a previous booster shot, shorter than prior recommended intervals.

Dr. Peter Marks, a senior FDA official overseeing vaccines, said he hopes the shots will restore the very good protection against symptomatic disease that the original vaccines offered when launched in late 2020 and early 2021.

"We don't know for a fact yet whether we will get to that same level, but that is the goal here," Marks said.

The government has begun working on the fall rollout, which could start soon after the U.S. Centers for Disease Control and Prevention's (CDC) outside expert panel meets on Thursday and agency Director Rochelle Walensky makes a final recommendation.

The United States has secured more than 170 million doses of the two shots in an attempt to stave off the worst effects of a potential surge in infections as schools reconvene and people spend more time indoors due to colder weather.

This could be the last COVID vaccine provided for free to all Americans as the government plans to shift them to the commercial insurance market next year. read more

Moderna's retooled vaccine was authorized for those aged 18 and above, while the Pfizer/BioNTech shot will be available for those aged 12 and above, the FDA said.

Pfizer said it has some doses ready to ship immediately and can deliver up to 15 million doses by Sept 9. Moderna said it expects its new shot to be available "in the coming days."

Read Full Article

 

Special Report — Complying with Wage and Hour Regulations

The SESCO Report July/August, 2022 (Part 2 of 3*)

Common Misconceptions and Compliance Issues

SESCO is available through a Professional Service Agreement or through a per diem fee to conduct a thorough Wage and Hour as well as HR and employment law audit. Contact SESCO to learn more about our Professional Service Agreement and services provided to clients in all industries across the country — [email protected] or 423-764-4127.

Calculating Overtime

Misconception 1: If an employee is taking more breaks than we allot by policy, we can deduct those additional breaks from their pay. An employer cannot make deductions from an employee's pay who take short breaks or who take more breaks than what policy allows if the breaks are less than 20 minutes. If an employee takes any break during the day regardless of policy that is less than 20 minutes, the employer is required to compensate the employee. Please note that the Fair Labor Standards Act does not require employers to provide break or meal periods.

Misconception 2: We must pay an employee based on their clocked hours even though they may clock in early or clock out late. An employer is not required to pay an employee should they arrive early, clock in and not perform any work until it is time. SESCO recommends to utilize the 7/8 rounding method as well as implement policy stating that employees who clock in early or late and do not perform any work will not be compensated. As labor costs are your largest controllable costs, it is critical that department heads/managers/HR professionals review all time records before processing payroll. Time records can be changed/altered to reflect actual time worked and SESCO recommends that both the manager/HR Director and employee sign off stating that true and accurate hours have been recorded.

Misconception 3: If a timecard states that the employee has been paid for 48 hours, we must ensure that overtime is paid based on their regular rate for these eight (8) hours of overtime. An employer must only pay overtime for actual hours worked in excess of 40 hours per week. For example, if an employee works 40 hours in a given workweek and is paid an additional eight (8) hours for a vacation day, no overtime is required to be paid on the eight (8) hours of non-working time, re: vacation day.

Misconception 4: We have to pay overtime for break times if an employee is at work over 40 hours in a workweek. Break times will not be considered hours worked if they satisfy the following:

  • The break is more than 20 minutes if it is a rest break or more than 30 minutes if it is a meal break.
  • The employee is completely relieved from duty; for example, a meal break is not spent answering phones, working at their desk, working at the computer, watching over a machine.
  • The employee is free to leave his or her work station.

Misconception 5: We do not have to pay an employee who works overtime, because it was not pre-approved. No, you must pay for all hours worked even if not pre-approved. The Wage-Hour Investigator will deem that the business benefited from the employee's work and that you knew or should have known that they were performing work. However, SESCO suggests a very strong, direct policy in the employee handbook discussing overtime and not working overtime unless approved. Further, disciplinary action is the most efficient way to address these types of issues.

Misconception 6: We have an exempt employee who works less than 40 hours per week; however, because they are exempt, we must guarantee the salary basis of $684 per week. The only requirement for compensation, even if the exempt employee works less than 40 hours, is to pay at least minimum wage. You do not have to pay the position the $684 per week. However, if the position works more than 40 hours per week, to avoid non-compliance, you must guarantee them the $684 per week to avoid overtime payments.

Misconception 7: Some of our employees work 24-hour shifts. They may not work all 24 hours as we do give them time to sleep and eat. However, because we require them to be at our place of business, we must pay them for 24 hours. Sleep time and meal periods will not be considered hours worked if they satisfy the following:

  • The employee is on duty 24 hours or more
  • The employee and the employer agree to exclude from work hours bona fide meal periods and a bona fide, regularly scheduled sleeping period of not more than eight (8) hours.
  • The employer provides adequate sleeping facilities and employees usually can enjoy uninterrupted sleep period.
  • Should a sleep period be interrupted and the employee is awakened and asked to perform work, that time is counted as work. If the employee gets five (5) hours of sleep, the entire sleep period of eight (8) hours can go unpaid.

*Tune-in next week for Part 3 of 3 

 
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