While it’s true that mistakes happen, avoiding them when you can is the best practice. But what’s the best part about mistakes? Learning from them. If you’re lucky, sometimes you can even learn from others’ mistakes and avoid a problem altogether.
Here are some common mistakes we see happening in the world of employment compliance. If you’re looking for ways to shore up your practice and ensure compliance, fixing these (if they’re happening in your practice) is a great place to start.
Mistake 1: Pay periods versus workweek for overtime pay
By law, overtime is required to be paid when an employee works more than 40 hours in a workweek. Some employers are under the misconception that overtime is paid when an employee exceeds 80 hours in a two-week pay period. Overtime is never about pay periods. All work hours over 40 in a workweek should be paid as overtime.
Mistake 2: NOT Defining the workweek
There is no law that defines a workweek. The law says only that a workweek must be seven consecutive 24-hour periods. If you have not defined your workweek specifically, then it will default to the calendar week of Sunday through Saturday.
While this may seem trivial, it becomes an issue as it relates to overtime. As we learned from Mistake 1, overtime is paid when work hours exceed 40 in a workweek. Properly defining the workweek is the only way to know when overtime is applicable.
You might also want to read: HR rules, risks, and no-nos: What the experts have to say
Mistake 3: Failing to pay final checks as required by law
Final paycheck rules are established by each individual state. Final paycheck regulations often differ depending on the type of termination that occurred. For example, was it voluntary on the part of the employee, or involuntary, (i.e., was the person fired)?
Complicating matters further, states often distinguish between quitting with notice versus quitting without notice. The time frame for providing someone who quits with notice with his or her final check may be less than for a person who provided no notice, for example.
In some states, all final checks are due the next payday, regardless of why and how the termination occurred. Even then, the requirements are often such that the next payday cannot exceed a certain time frame, such as 20 days. The result is that you cannot make up your own policy on this or have one policy be applicable to everyone in all situations. You must follow final pay requirements according to applicable state laws.
Mistake 4: Hiring temps to avoid employment problems
There is no situation in which you can hire someone and avoid employment problems or consequences that may result from that employment relationship. This includes unemployment claims, retaliation and discrimination claims, wage and hour claims, workers’ compensation, and more. In the eyes of the government, a temp is your employee for all intents and purposes, and problems can arise with that relationship regardless of the temp status. This is especially true if you’re paying the employee directly. For other relationships, you may be considered a “joint employer” and share in at least some, if not all, of the possible liability.
Mistake 5: Not paying for unauthorized work time
You may have experienced them—employees who milk the clock and work more than they should. Sometimes it’s a little here and a little there and it doesn’t add up to much. Sometimes it’s a significant chunk of time and results in overtime for the week, or day, if applicable.
When it comes down to it, can you refuse to pay it? No, you cannot refuse to pay an employee after he or she has worked, regardless of your policy. You can apply standard disciplinary measures such as verbal or written counseling, perhaps suspension without pay, and even termination, but you cannot refuse to pay for time worked. This will only invite wage and hour claims.
Did you learn about something with these five common human resources mistakes that you’re not doing correctly? If so, congratulations, because now you can avoid the mistakes. With this awareness you can begin to fix problems or figure out how to prevent them before they become a costly nightmare. Every little bit helps.
Editor's note: Originally posted in 2018 and updated regularly