HR Compliance Pitfalls and How to Avoid Them

At TriNet’s 2023 Small Business Administration's National Small Business Week Summit, Allison Amador and Kelly Pacatte, TriNet’s Lead HR Compliance Consultants, discuss employer compliance considerations around pay practices, pay transparency, artificial intelligence, workplace accommodations and remote work.

Please note that these sessions are for educational purposes only. TriNet provides HR guidance and best practices. TriNet does not provide legal, tax or accounting advice. The materials in these sessions and the products, advice and opinions expressed in these sessions are solely those prepared by the presenter and not necessarily those of TriNet.

Allison Amador:
Thank you so much for all joining today. Today we are gonna talk about what small business and startup owners need to know when it comes to compliance. So first we're gonna talk about what we're gonna cover today and then we're gonna move into our topics of the day.

Our topics of the day are that we are going to cover pay practices. We're gonna go ahead and get started talking about those. Then we're gonna move straight into pay transparency and then a trending topic. I'm sure that you've seen, it's all been all over the news, which is artificial intelligence or AI. And we are gonna talk about how that impacts us in the workplace and some considerations there.

Then we're gonna move into a topic that you might have heard information on before, but lots and lots coming out about this topic, which is workplace accommodations. So we're gonna talk about that a little bit, and then we're gonna round that out with remote work.

Let's get started talking about pay practices in the workplace. So first, what we're gonna do, is we're going to talk about a little history when we look at pay practices. One of the first things we think about is the Fair Labor Standards Act. You may often also hear this referred to as the FLSA and what that federal act did is it established minimum wage, overtime pay and record keeping requirements among others for employers.

The law can be complicated and it could be difficult to navigate, particularly when you consider that some states and localities also have additional wage related requirements outside of just the federal FLSA. The federal FLSA is the foundation of what many of the pay practice businesses must comply with, and there's really no such thing as a business being too small or really too early stage to have to comply when it comes to an FLSA. One of the best items to remember is if you have workers, you must comply with the act. Otherwise, you're creating immediate risk for your organization. The FLSA sets the minimum employees must be paid by their employers, and states and localities create their own rules too that employers must comply with, but the FLSA is the starting point. So the Department of Labor, which you might also hear us refer as the DOL, is expected to announce an item that's really gonna impact this. That's why we wanted to start today, talking about these pay practices. Something that the Department of Labor is expected to announce soon is a potential increase to the exempt salary threshold under an anticipated new overtime final rule.

And if you remember a few years back, I know Kelly and I, we were with TriNet and there was a push to increase that salary threshold a few years back. And a lot, a lot of companies, especially small businesses were really scrambling to meet those requirements. So, I don't know Kelly if you remember that as well.

Kelly Pacatte:
I do. I remember putting in lots of hours helping our clients through that change.

Allison:
Absolutely. Absolutely. So one of the really big items that came out of that for Kelly and I, it's a good idea to start preparing even before you see that change comes out, because it is a potential change, very likely coming up soon.

Let's talk a little bit about what that change might be. Currently, the FLSA salary basis or threshold for executive admin and professional exempt employees today is $684 a week and annualized as a salary that's $35,568. That's what it's like today. Although we are still waiting for more information, the expected rate may be raised to somewhere between $900 to a thousand dollars a week.

So compare that to $684, right? That's quite a jump. And that's equivalent to an annual salary of $46,800 to $52,000. So again, quite a jump from today's $35,568 is a significant increase. And so if you have exempt employees that currently are below what we think the proposed increase could wind up, begin thinking through some steps you can take now.

Some action items, as we wait to hear about the potential increases are first, go ahead and review the exempt employees status who make between $684 to a thousand dollars per week. These employees have the potential to be impacted, right? Because again, they're lower than potentially what that threshold may be.

And particularly, definitely you want to look at those individuals earning closer to that lower amount, the $684 weekly earning amount. Consider what steps you may take with these employees' salaries after the rate is announced. Some example options could be changing their status to a non-exempt employee, which means the employees would then be eligible for overtime and potentially double time plus additional wage and hour compliance requirements that do apply to non-exempt employees.

Or will you increase the employee's salary in order to meet the new salary threshold? Just a couple things to start thinking about. One thing we do want to mention though, is just meeting the salary threshold isn't enough to determine if an employee can be exempt. I know we are talking about the salary for exemptions, but you can't just rely on the salary or the title for example, manager, because the FLSA and state equivalents provide a duties test as well.

Last time during the threshold increase it did not change, but it could change this time and reviewing any changes to the duties test, in comparison to the employee's responsibilities, in order to assess the proper exempt or non-exempt destination should also be prioritized.

And then be aware of also state level minimum requirements and also duties requirements. Some states have a higher salary threshold and then some states might also have a different duties test. Important to be aware of those. For our TriNet clients on tonight, on today's webinar, we do have a tool available, the TriNet HR Navigator Suite for you to use to help analyze an employee's duties and responsibilities in light of the current federal and state requirements at least.

And that way you can get a jumpstart in analyzing their current roles under exempt and non-exempt guidelines. And then you're gonna see a very common thread, as we talk through today's presentation. We are also going to start talking about remote employees.

And that could also, of course, apply to our hybrid employees who are working remote. And how typically, these items, these pay practice items and other items do apply to remote employees, as well as employees who are on site. Required breaks for non-exempt remote employees, the FLSA requires covered employers to pay non-exempt employees for all hours worked, including certain rest periods.

We even saw the Department of Labor come out in February 2023. They made a statement that did confirm that remote employees should be included on this. Keep in mind that the FLSA provides bonafide meal breaks of 30 minutes or longer and rest breaks of 20 minutes or more and are not typically compensational if employees can use the time for their own purposes and are relieved from duty.

It really is important with non-exempt employees. Are they relieved from duty during those times? I'm gonna give you two examples. One example is an employee who works at a co-working location and takes lunch between 12:30 and one, though the employees is on lunch, the employee continues to answer work-related phone calls and emails and they're not relieved of their duties during the meal break.

So really important in this example, right? They're answering phone calls. Even answering a text from a client can mean I'm working during a break. And so, in that instance, they must be paid for their mealtime. Some state rules may even require the employee be paid an automatic meal penalty on top of their hourly wage for not being allowed a lunch break free of work.

Let's look at a second example. An employee works from home and can set their own schedule and they begin working at 7:00 a.m. and then they take an hour break to get their children ready for school, some time between eight and nine. And they're not doing any work during that timeframe. That time period is not compensable under the FLSA because they're completely relieved from their duties.

These break time issues are becoming more and more prevalent in today's remote work environment. Employers can help manage these issues by having a strong remote work policy that outlines expectations, training managers and encouraging open dialogue. Employers should communicate to all employees the importance of taking rests and meal breaks, where they completely step away from their work responsibilities, because it's especially important for non-exempt workers to be provided with these legally required rest and meal breaks or employers may be faced with owing employees additional wages plus fines and penalties due to the missed breaks and time periods.

When managing a remote workplace, an employer should set clear expectations, and really important that you still have an obligation to maintain an accurate record of hours worked, even when your employees are working remotely. So make regular reminders a part of your dialogue with all employees and managers, including remote workers in order to avoid any surprise wage in our claims we don't want.

Kelly:
All right. Thanks Allison. Those are such good tips. And you know, like you said, we are seeing so many questions from our clients about remote work. This is definitely a theme throughout the presentation. I really feel like the DOL reminder back in February was just, you know, hey, employers, don't forget about remote workers when it comes to FLSA.

So great tips. Now we're gonna transition a little bit to talk about pay transparency and I really feel like we could do an entire webinar on pay transparency. However, the purpose of today is really just to highlight its importance and to identify it as a trend that employers need to be aware of.

In my opinion, it is incredible to see how quickly we are seeing pay transparency laws pop up as an HR practitioner for many, many years. It amazes me, how the way I consult on pay transparency and salary confidentiality has truly changed over the last 15 or so years. There's been such a shift in mindset.

Let's think about, let's look at what pay transparency is. Pay transparency is an employer's obligation to disclose certain aspects of compensation, aimed at advancing pay equity. It gives applicants internal information about compensation with the idea being that if the applicant has been underpaid in the past, which is oftentimes women and people of color, they may actually accept a lower salary than their coworkers in the same or similar position during the hiring process because that's just what they're familiar with.

These laws vary based on requirements, depending on the location. So they're very, very location-specific. Some require salary range disclosure upon request of the applicant, while others actually require the salary range to appear on the job posting itself. Some of the locations that are impacted include California, Colorado, Connecticut, Maryland, Nevada, New Jersey, New York State, Albany County in New York, Rhode Island and Washington.

Additionally, even if you think you're not impacted, because you're not one of those locations, you are, if you recruit nationally, because your national search involves one of these locations, right, with pay transparency requirements at the application stage. This list continues to grow and it's not exhaustive.

There are also additional location-specific requirements in cities and counties in California, New York and Ohio. TriNet clients can contact us on location specific guidance and we will definitely send out client communications as updates happen. So just be on lookout for those communications from us.

So let's think through some HR best practices when it comes to pay transparency. First and foremost, it's best to start with a pay equity audit. And a pay equity audit will identify any employee whose compensation falls outside of the expected level based on bonafide factors like the employee's tenure, job performance and their responsibility level.

It's really a good idea to involve legal counsel when conducting an audit to evaluate risks and to determine whether the audit can be privileged. After that you should decide what to do with the pay inequities. Depending on the scope of the disparities, you may wanna adjust the salaries of underpaid employees all at once or you may need to do it a bit more gradually.

But either way, it's important not to delay too long. An employer that conducts a pay equity audit and then does not take reasonably prompt steps to correct disparities may find itself with a pay discrimination lawsuit. Next, you should create a salary structure for your organization if you haven't already done one.

And then after you've created a salary structure, begin preparing to list pay ranges and job postings. It's a good idea to include context about what factors like experience or credentials, that will impact where a given applicant falls within the range. And finally, and I think this is on all of the topics; train managers and others involved. Managers and decision makers really must understand your company's pay equity efforts and their role in carrying them out.

Managers need to be aware of what they can and can't do during salary negotiations. Salary decisions should not be left entirely up to the discretion of some rogue hiring manager to negotiate, but they should be based on justifiable objective, non-discriminatory criteria and made according to your established salary structure.

And as a reminder, pay transparency requirements are extremely location specific. The location that's impacted by pay transparency laws will continue to grow. This is really just a generalized approach for best practice and TriNet clients should contact us with their specific questions.

All right. Now we're gonna transition a little bit to a topic, Allison, I don't think I ever thought we would do in an HR webinar.

Allison:
I know, I know. I would say, you know, even, a couple years back, this would've been a surprise to me to see in any webinar. And now we're seeing this pop up all over the place. So really interested in what you have to say here, Kelly.

Kelly:
Yeah, I agree with you. I think within the past two quarters, it's really become an HR topic. So, artificial intelligence or AI, as I'm going to refer to it, is becoming more and more common in our world today. In fact, in 2022, the Society of Human Resources Management found that nearly one in four organizations report using AI for HR related activities.

That's just HR, that's not business, that's HR, right? And then in 2021, the EEOC actually launched an agency-wide initiative to ensure that AI and other potential emerging technologies, like AI, used to assist with employment decisions like hiring, comply with the federal civil rights laws that the EEOC enforces.

They have since even issued guidance on AI as it relates to the ADA, and they're continuing to hold hearings regarding AI and other potential discriminatory issues. This continues to remain a high priority for them and because of their emerging focus, employers need to be mindful of how they use AI in the workplace.

If it matters to the EEOC, it needs to matter to employers. So let's look at the definition of what algorithmic discrimination is. So the AI Bill of Rights, which was actually published by the White House in October of ‘22, defined algorithmic discrimination as when automated systems contribute to unjustified different treatment or impacts disfavoring people, based on their race, color, ethnicity, sex, religion, age, national origin, disability, veteran status, genetic information or any other classification protected by law. So with many organizations adopting AI as part of their business, how do we prevent algorithmic discrimination?

First recommendation, consider vetting your vendor or service provider about how they avoid discrimination. Most of us on this call are not actually developing our own AI. We might, but likely we're using some type of vendor. And you should ask—are there any steps they take to avoid algorithmic discrimination? One example of algorithmic discrimination might occur when employers don't wanna recruit in certain ZIP codes based on employment requirements for that specific location.

Maybe they attended this webinar and they saw the list of pay transparency requirements and decided, "Oh, well we don't wanna look, we don't wanna recruit in that location." And so actually avoiding applicants in certain urban areas, that could actually be potentially disfavoring minorities, so it's really important to think through your locations when you're developing your algorithm for your search areas.

Another thing to keep in mind is you should be engaging in the interactive process throughout the recruitment process. And that includes offering any reasonable accommodations to applicants during the application process if you're using an AI tool. So an example of this looks like your company utilizes a chatbot as part of your interview process for a sales physician at your retail store. The chat bot asks the applicant if they can stand for two hours and the individual applying answers no because they're in a wheelchair. And then the chatbot ends the interview since it sees the applicant as unable to meet the job requirements, because that was just how it was programmed.

So however, the applicant most likely may be able to meet these requirements with a reasonable accommodation, and it's your duty to engage in the interactive process to make that determination. To remedy this, don't just filter out applicants who can't meet the physical requirements without some way to engage in the interactive process.

And it's really important to continue to monitor the EEOC for guidance. This is a priority for them. They are continuing to develop resources and they're actually posting them on their website on a page titled Artificial Intelligence and Algorithmic Fairness Initiative. So monitor that page for additional guidance from the EEOC.

All right, so now we're gonna go on and talk a little bit about a specific AI tool, chat GPT. And I know many, many of us on this call have heard about Chat GPT. But if you haven't, Chat GPT, it stands for chat generative pre-trained transformer, and it's an AI generative tool. And it was created by open AI.

And essentially what it does is it drafts a response after a user provides instruction in the form of a prompt. Chat GPT and other similar generative AI tools can really benefit the workplace because they save time for drafting content, which allows users to spend time on other tasks. Some additional benefits may include writing content such as blog outlines, creating technical content or procedures, writing cover letters and resumes, drafting emails to staff, creating a PowerPoint presentation or procedure outline.

Generative AI technology can even be used for brainstorming ideas, reviewing and streamlining processes, and even as a solution integration, like a chatbot during customer service transactions. So it's official—Chat GPT is probably in the workplace, maybe not your workplace, but we're seeing it everywhere.

And so because of that, we need to think through some HR considerations, particularly as you develop your company's policy and approach regarding the use of chat GPT and other similar AI tools in the workplace. First and foremost, as a best practice, determine whether your employees will be allowed to use this type of technology or not allowed.

And if they are allowed, determine the type of capacity they're allowed to use it. And if you decide that you do allow for this type of technology, I would recommend that you have a practice where you require employees to disclose that they use such technology or otherwise cite a source of information.

I mean, citing a source is always a good idea, regardless if you're using Chat GPT. However, this will help you later if you ever need to identify any work products that involves Chat GPT. Then you should create a processor policy that requires employees to fact check and confirm the accuracy of all the information sourced using Chat GPT or any other similar tool.

So for example, such technology may have limited industries, specific knowledge or knowledge that really isn't current on quickly evolving topics for which inaccurate or incomplete results are produced. And then it's really important to include in your policy a statement prohibiting employees from disclosing confidential information.

Because as you think about it, you know, the way Chat GPT works is employees are entering information into a prompt. It's important that you remind employees not to disclose or upload confidential, proprietary or personal information while using that tool. Depending on your business, you may consider incorporating this as part of your security and confidentiality training that you do, and you should also include it at in your written policies.

Employees may not realize that they should not disclose confidential information when entering into the prompts. So it's really important that you tell them. Also, since applicants may use Chat GPT to create a resume or draft a cover letter, think about having your recruitment process involve interviews where you verify the accuracy of the information the applicant presents in their application or cover letter.

TriNet clients should be happy to know that on our application, we do, have a spot where the applicant certifies that the information is accurate. So, know that we've got you covered there.

And then finally, if your company uses Chat GPT to develop work product, consider working with inside or outside council to address any potential copyright or patent issues.

And because Chat GPT is such a new tool, it's going to evolve, right? And it's important to monitor this topic, as well as all other AI related topics, and to work with your inside and outside counsel with respect to any legal matters with this changing AI environment. In addition, because this is so new, we should never assume employees know appropriate expectations about how to use these types of tools.

You should provide training and have a really good, solid policy so that employees know exactly what is expected of them. Not only will this set your appropriate expectations, but it will help protect your organization as these types of tools continue to evolve.

Allison:
Thank you, Kelly. That was such an important message, that just because we've started to see, using AI, and again, a lot of organizations may not be using it yet, but it's become such a trending topic, I think we're gonna see it more and more, that while it's got lots and lots of benefits, it's really important, it's not always guaranteed to be accurate and we're still responsible for making sure we meet our compliance requirements, even when using a vendor outside technology. So again, what Kelly went over with those best practices in AI, if and when you do decide to do AI in your organization, will be a really helpful place to start to help protect your organization.

So thank you again, Kelly. Now we're gonna talk a little bit more about workplace accommodations. And this is another topic that is very, very important to small businesses and really businesses of any size. Workplace accommodations may be an item that you have heard of for quite some time.

This could be your first introduction to it, but a lot of us may have heard of it before, but this is one of those topics that keeps getting more and more expanded and there's a lot of different items for us to think about. And speaking of the EEOC and what is of interest to them, this is a very important topic, because there are a lot of compliance requirements when it comes to accommodations and it's important to be following those.

So first, let's start with defining workplace accommodations. Many times when you hear the words workplace accommodations, you may jump to thoughts of the Americans with Disabilities Act, or you might have heard it referred to as ADA, in similar state laws. And what those do are they provide the need to accommodate an applicant or employee with a cover disability who needs support to be able to perform the essential functions of the job.

So a couple of examples are if maybe I need a larger monitor in order to better see information or a schedule that allows employees to attend recurring medical appointments in response to a diagnosis. Complying with the many facets of these laws is incredibly important. And there are other regulations out there and items to consider in addition to the Americans with Disabilities Act, ADA and similar laws.

And today we're gonna highlight some potentially required accommodations that are sometimes overlooked or denied that can create risk for employers. As a general definition, overall, a workplace accommodation is a modification or adjustment to a job, work or other workplace process that helps to provide equal employment opportunities to individuals with a disability or other need.

A job applicant or employee, applies to both, may be entitled to a reasonable accommodation in the workplace for a variety of reasons, including, but certainly not limited to, a disability, serious health conditions, so we just kinda talked about those, but also for a lactation, domestic violence, sexual assault and stalking or sincerely held religious beliefs.

And today we're gonna talk about a couple of these items I just mentioned. So let's start with lactation. Lactation accommodations, including but not limited to, providing adequate time and facilities for new mothers to express breast milk, help to provide equal opportunities to mothers seeking to return back to the workforce after giving birth to a child.

Such accommodations may be required at the local, state and federal levels, and they should not be limited to employees working on site. So I told you this is gonna be a trend when we talk about how typically our requirements, when it comes to in-office work, do also apply to our workers working remotely or hybrid.

Some examples of this are that breastfeeding mothers should have a place to express milk that is shielded from view. So that's one of the requirements, right? And that could mean that employers must ensure that employees are free from observation by an employer provided or require video system.

So let's say we're doing some monitoring, including a computer camera, security camera or web conferencing platform, this is a requirement again, no matter where we're working. Clearly defining your lactation accommodation policies, so you see this is another trend Kelly and I are gonna talk about, is defining those policies and training our managers.

And then of course, making sure everyone complies can be an effective tool to help attract new talent so that your organization can also increase retention by encouraging new mothers to return to the workplace. Failure to adequately support breastfeeding mothers in the workplace could also run afoul of discrimination, harassment or retaliation provisions that may place you at a greater risk for employment claims liability, so really important for us to focus on this.

Another item to focus on is accommodations related to domestic violence, sexual assault and stalking. Victims of these items may require accommodations that support them with caring for injuries, including potentially going to court appearances, obtaining social services and more and otherwise generally, being able to effectively perform their job.

Many states and localities have passed paid sick and safe leave requirements, LOA and other related laws to support employees with obtaining the care and services they need. In addition, even if an employee is not statutorily required to provide accommodations, and in many times you are, doing so is still a best practice for all employers.

So at a federal level, there's no statutory accommodations specifically related to this that are gonna specifically state this. However, employers do have an obligation under the general duty clause of the Occupational Safety and Health Act, which you probably also know as OSHA, to provide a workplace free from recognized hazards that could seriously harm or cause death to employees. So what this does is it requires employers to take actions necessary to help ensure the safety of employees.

There also may be requirements at the local and state levels, and these requirements can vary significantly. For example, certainly not an exhaustive list, but they could have different qualifying reasons and notice of documentation requirements. So some examples of potential accommodations for this could be a modified work schedule, leave of absence and safety procedures, and again, not limited to these items, but just some items to think about.

Another topic that you may have heard for some time that has been in the news a little more lately is religious accommodations. They've received recent media attention when it came to Covid-19 vaccinations and whether or not employers could require employees to get vaccinated, and it still may remain a confusing topic for employers. So as a definition, employees may be entitled to accommodations under local, state or federal laws because of their religious beliefs, practices, or customs, and reasonably accommodating employees' sincerely held religious beliefs is, again, a best practice for all employers. So religious beliefs may include, but are not limited to, those associated with organized religion. Also non-traditional beliefs such as moral or ethical beliefs, including atheism, religious practices that are newly adopted or maybe we didn't necessarily consistently observe them, and also the beliefs of someone the employee is associated with or married to. Very recently, the EEOC, which Kelly just mentioned as well, updated their guidance in 2022, regarding religious accommodations. And they were doing that specifically to Covid-19 vaccination requirements, but it gave us a lens into how they view these.

The EEOC said employers should proceed with the assumption that a request for a religious accommodation is based on sincerely held religious belief, practice or observance under Title 7. There are actions you can take to help facilitate an environment in which, accommodation and considerations are consistently applied.

And just a couple of these, certainly not exhaustive lists, are considering inclusive policies on grooming and attire. And then of course, also training managers, supervisors and HR contacts on how best to respond to potential or existing accommodation requests. Also workplace adjustments, wanted to spend a little time talking about workplace adjustments, and comparing that to the accommodations.

For adjustments, there may be scenarios where an employee requests workplace adjustments for reasons that are not expressly protected under accommodation laws. While you may not be required to accommodate some requests, it's still, you know, recommended that you evaluate them to determine if they might apply and more generally, as a best practice.

Again, always important to develop policies. And it's a great thing to do to leverage an employee assistance program if you offer one to your employees. TriNet clients and their employees do have access to an EAP. These types of programs offer resources such as free counseling sessions, training and access to experienced representatives who can provide support.

A couple of places where we may look at workplace adjustments is caregivers. It's not uncommon for employees to require flexibility due to being in the role of a caregiver for a family member. Generally, employers are not required to accommodate caregiver responsibilities. However, employers should still be careful to avoid discriminating against employees because they have caregiver responsibilities.

And you do still wanna be mindful of the many industry, local, state and federal laws that may require you to provide paid or unpaid time off for caregiver responsibilities.

Also, grief in the workplace. So grief in the workplace is often associated, or grief in general, with an individual's response to death, but it's actually a much broader response to many different types of losses.

It could be grieving a loss of an important relationship, of one's home, relocation for work and more. When supporting grief in the workplace, no one size approach fits all. Grief can impact an employee's whole self and can display in several ways, such as, but again, not limited to, sleep deprivation and exhaustion, high blood pressure or dizziness, and extreme emotions such as anger, anxiety, guilt, relief or even depression.

So consider these accommodations while grief is not itself a disability under the ADA, it could also, maybe lead to items such as depression or sleep disorders, which could be covered under the ADA, or statutory leave requirements, such as the Family of Medical Leave Act and reasonable accommodations or extended leave may be therefore required under certain circumstances.

Some of those situations could be bereavement leave. There are certain locations that require bereavement leave such as California, Oregon and Tacoma, Washington. Paid sick and safe leave—you should also review your organization policies and make sure that you are being consistent.

When we're looking at accommodations or adjustments in the workplace, we're gonna talk next about engaging in the interactive process in the workplace, because as we look at accommodations, it's very important for us to determine the interactive process as a starting place for really all of these accommodation requests. It is foundational to determining what accommodation an employee may need. We do always want to go ahead and start with that interactive process. So a couple of suggestions we have on this slide, is establish, communicate and then consistently apply organizational policies and practices, recognize that a reasonable accommodation may be needed.

So again, it may not be, obviously stated to us, we may need to look out for signs and if it may be needed, and that could be statutorily required, like with the ADA. Determine statutory requirements that may apply not just at the federal, we just mentioned ADA, but what about, also at the industry, local and state levels.

It's always important to prepare our leaders for a discussion with the employee or prepare ourself if we are the one having that discussion. And again, a really important part of the interactive process is engaging in that interactive discussion with the employee and then documenting. So very important, and really all of compliance is to document, really important to document each step of that interactive process.

And also communicate in writing to the employee. Then as we go forward, monitor the accommodations. And then of course, always be mindful of provisions related to discrimination, harassment and retaliation provisions. So again, really important for us to consider how we are going to work through accommodation and adjustment requests in the workplace. And this is always a really good place to start and it's time sensitive on your part as an employer.

It's important to pause and do your best to figure out how you can provide the support employees need in order to meet your compliance obligations and demonstrate you're an employer that invests in the workforce.

Kelly:
Thanks Allison.

Such good pointers and I know we work with our clients all the time on accommodation-related issues and you know, many of us think that it's just related to some type of medical condition. Your presentation just pointed out that it's so much broader than just that.

So thank you for that. Now continuing our trend on remote work and before I get started, I do wanna highlight that TriNet clients have access to our Covid-19 microsite, where we actually have a tile dedicated to remote work and hybrid work. And we have remote policies and hybrid policies as well.

So anyway, but we are continuing to see remote work questions come up from our clients. These mainly seem to involve transitioning back to the workplace and what to do when an employee wants to remain remote when that transition happens. The news headlines have been full over the last few months of large well-known companies who have announced the transition to return to the office, and I really expect that we're going to continue to see smaller organizations follow suit.

It's important to plan before making the announcement that employees must return to work. I've said this throughout the pandemic when clients are returning—know the why before you make the announcement. What is the business case for returning to work? And this will really help you communicate to your employees, manage expectations and address any of their concerns, particularly as you navigate requests for employees to remain remote because you will probably receive those.

So first, make plans to prepare to handle these requests for employees to remain remote prior to even announcing it to your employees. Think through scenarios of these types of requests and how you will respond to them. This way, you're not going to be caught off guard. And when you receive a request, review it to see if the request for the accommodation is covered under federal, state or local law.

Like Alison said, the EEOC has identified teleworking as a potential reasonable accommodation. We are seeing news headlines all the time in the HR world about this, so be very mindful of that. Employees working from home for this extended period of time have actually shown that this work can be done remotely and it will be very difficult for employers to say that there is an undue hardship during the interactive process if they allow an employee to continue to work remotely as a reasonable accommodation.

And then, you know, another scenario is the employee needing time to deal with personal obligations. Do they need to deal with caregiver responsibilities, those types of things? They may need just additional time before the transition. And finally, we've seen lots of instances from our clients where an employee has actually moved during the pandemic and they're no longer able to commute to work. So think through what that looks like, what happens if an employee, they've moved and they can't commute to work. So, those are just some common scenarios that we've seen.

Other things to think through is—employees may continue to be more satisfied working remotely. We're seeing that time and time again on surveys that the workplace flexibility is so important to employees. If you don't have this, you may actually risk turnover. Then think through—are you able to handle the cost of backfilling positions if there is turnover? If not, look to offer some type of hybrid work model.

Like I said, we have lots of resources available on our microsite and it's a good reminder to have a remote work policy. And again, that's also available on our microsite as well. You need to address where work can be done and also any expenses related to remote work. And then finally, if you plan to remain fully remote or just keep a portion of your employees remote, you may want to address this in the recruiting process.

If part of your workforce remains remote, while the remainder are in the office, you need to identify which jobs will be remote and which jobs will be in the office, because this will impact your recruiting area. And we've learned in this presentation that understanding your recruiting area is so important. Particularly, if you're doing a nationwide search, be mindful of federal, state and local regulatory requirements like pay transparency, that may require you to disclose compensation information for the job.

It's also important to train those involved in the recruitment process on the technology, but also on these regulatory requirements. And I just wanna thank you for attending today. If you have any questions, you can email us at TeamTriNet@TriNet.com.

Thank you so much.

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ESAC Accreditation
We comply with all ESAC standards and maintain ESAC accreditation since 1995.
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Certified PEO
A TriNet subsidiary is classified as a Certified Professional Employer Organization by the IRS.5.