HUMAN RESOURCE POLICY

A Note of Thanks

Many thanks to the fifty-four members of the Statewide Policy Committee for all that was accomplished in 2007.  The committee offered opportunities to craft and tweak human resource policies in a manner that makes them more meaningful and useful to agencies.  In this continuous learning environment, committee members, who have diverse interests and expertise, had a front row view of worklife across the Commonwealth.

Once again DHRM realized the importance of agencies’ influence on human resource policy and the value of collaboration.  We are grateful for your high-concept ideas for policy modifications, suggestions for policy guides, and the many practical and common sense recommendations that signal the beginning of a new direction for human resource policy.  We look forward to an active new year.

2008 Policy Priorities

Based on suggestions from agencies, colleges, universities, and employees, several initiatives have been identified as priorities for Policy Development and Administration.  Priorities may be amended due to legislation, related statewide initiatives, and changes in employment law, but for now critical areas appear to be:

Records Management Policies – These policies have not been fully examined since 1993 and, among other things, need do be revised to sufficiently address electronic/paperless systems in place or being planned for implementation in many agencies.

Telecommuting Policy – Now that agencies have more direct experience with alternate work locations, this policy requires attention.  Issues include the adoption of a standard nomenclature for telework and improved guidance and formal agreements for managing telework environments.  DHRM continues to work with the Department of Accounts (lead agency), VITA, Taxation, VRS, Agriculture and Consumer Services, and the Office of Commonwealth Preparedness on the establishment of agency expenditure guidelines for telework.

Layoff Policy – This policy needs to be examined to determine if it is on par with modern public sector practices and to identify administrative efficiencies for agencies and affected employees.

Note:  The HR Management Consultant position for policy is vacant.  The 2008 priorities will get underway once the position is filled.

VSDP - Administrative Clarification

VRS recently announced an administrative clarification regarding the definitions of Total and Partial Disability.  UNUM Provident’s December newsletter stated that:

“Several situations have occurred where agencies have struggled with advising their employees to file claims when they have a reasonable, short term restriction in job duty, but no lost time – and the agency is able to accommodate.”

VRS has clarified that “in instances where an individual is working but may have the inability to complete one job function, UNUM will apply the 80% of pre-disability earnings test to the claim and review per the partial disability definition.   If the employee is able to work full time, but not full duty – and has no earnings loss – then it is not appropriate to require the employee to miss work to file a claim. “

This administrative clarification took effect November 13, 2007, and is being applied to all new claims filed on or after that date.  Additional communications and training are being planned by VRS and UNUM.  DHRM is working closely with VRS and UNUM to determine what modifications to VSDP Policy 1.57 may be needed.

New Form I-9 Must Be Used

The U.S. Department of Homeland Security (DHS) gave notice in the Federal Register, November 26, 2007, page 65,974, that employers must use the new Form I-9.  The new form has a revision date of 06/05/07 displayed in its bottom right corner.  The form is available at http://www.uscis.gov/files/form/i-9.pdf.

Copies of previous, unused editions of Form I-9 should be destroyed to prevent their inadvertent use.  DHS may impose penalties on employers who use an older edition of Form I-9.

DHS also issued a new, 47-page, Handbook for Employers, with expanded instructions on how to use the form and which documents are acceptable for verifying an employee’s identity and authorization to work.  The handbook is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf.  Those who wish to obtain a copy of the notice from the Federal Register should go to http://www.gpoaccess.gov/fr/index.html and use the information above to retrieve it.

No-Match Letter Controversy

Since 1994, the Social Security Administration has sent “no-match” letters to employers when it finds that the names and Social Security Numbers (SSNs) on IRS Forms W-2 do not match its records.  It is important that these “no-match” cases be resolved so that employees have their earnings properly recorded and their future Social Security benefits paid accurately.  It is also important for the name and SSN to match because agencies may be fined $50 for every incorrect SSN appearing on Forms W-2.

In the past 8 CFR 274a, “Control of Employment of Aliens,” has contained a definition of the term, "knowledge," as used within the regulation.  On August 15, 2007, the U.S. Department of Homeland Security (DHS) published a final rule, “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter,” in the Federal Register, volume 72, number 157, pages 45,611 – 45,624.  This rule amends the former definition of “knowledge” by expanding it.  The amendment states that persons who receive No-Match Letters from the Social Security Administration may be determined by DHS to have constructive knowledge of having hired an alien who is not authorized to work in the United States.  The amendment, however, also provides a procedure by which an employer may avoid such a determination by DHS.

The actual amendment to the regulation is on pages 45,623 – 45,624, and employers should be familiar with its requirements.  Pages 45,611 – 45,623 provide background on the rule’s development but are not necessary to its application.

Controversy has arisen because many reports have stated that, if the “no-match” cannot be resolved within 90 days, then the employee must be fired.  These reports are not accurate because the regulation actually provides a means to resolve cases for DHS purposes beyond 90 days.  Resolving the DHS case, however, does not relieve the employer of the responsibility to report the correct name and SSN to the Social Security Administration.

Copies of rules and regulations published in the Federal Register (FR) may be obtained from http://www.gpoaccess.gov/fr/index.html.

Copies of regulations published in the Code of Federal Regulations (CFR) may be obtained from http://www.gpoaccess.gov/cfr/index.html.

Those using the CFR should note its revision schedule because recent amendments to a regulation that have been published in the FR may not have been incorporated into the CFR.

Questions about Forms I-9 and the employment of aliens should be addressed to an agency’s assigned AHRS consultant.

FLSA, Holidays, and Exempt Employees

Since the publication of the updated Holiday policy (Policy 4.25), we have received several questions regarding treatment of FLSA exempt employees who are on leave without pay (LWOP) during the workweek in which a holiday falls.  The policy says that exempt employees are eligible for holiday pay unless they are on extended leave without pay and unavailable for work on the entire last scheduled workday before the holiday and first scheduled workday after the holiday.

If an exempt employee leaves work two hours early on Thursday due to illness and does not have adequate leave to cover the absence, the agency may dock the employee’s pay for the two hours.  However, an exempt employee’s pay may not be docked for hours when he or she is available for work.  If the next day (Friday) is a holiday, the agency cannot assume that the employee is unavailable to work simply because he or she was on leave on Thursday.  There must be compelling evidence that the employee is not available to work (e.g., is hospitalized or out of town on personal business), or the employee’s holiday pay may not be withheld.

The language in Policy 4.25 provides an opportunity for withholding holiday pay for exempt employees in specific situations that avoid the risk of noncompliance with the FLSA.