Don't HR Alone #55 - QA's: Minimum Wage, Service Dogs, and Cyber Security

Question:

Is minimum wage calculated on hours worked or hours worked plus performance-based earnings, thus subject to change each pay period? For instance, a nonexempt employee is paid $320 for 40 hours worked with $60 added for performance goals, totaling $380. Which amount is used to determine the employee's minimum wage; $320 or $380? The minimum wage in our state is $8.50.

Answer:

The amount used to determine the employee’s minimum wage would be $320 because, under the federal Fair Labor Standards Act (FLSA), employers must pay nonexempt employees at least the applicable minimum wage for all hours worked up to 40 in the work week and the calculation of the minimum wage cannot include commissions or bonus/incentive pay. Certain credits may be permissible that would allow the rate of pay to fall below the minimum wage, but those credits are limited to tip credits and credits for food and lodging.

Therefore, in your example, if your employee is earning $320 per week for 40 hours of work, the rate of pay is $8 per hour. In your state, your minimum wage is $8.50 per hour. You would need to increase the rate of pay for hours worked by $.50 per hour so that the employee earns the effective rate of pay. The incentive payment will be in addition to the applicable minimum wage.

While employers must include commissions and nondiscretionary bonus payments in the calculation of overtime, commissions and any bonus or incentive payments are not included in the calculation of minimum wage.

Question:

We have a new employee in our call center who has a service dog. She came to her interview and trained without the dog, but is now asking if she can bring her dog to work. Should we notify her co-workers in case they have allergies?

Answer:

The first step will be to determine whether the dog is a trained “service animal” as defined by the Americans with Disabilities Act (ADA), or is an “emotional support animal.” A “service animal” is one that has been individually trained to work or perform specific tasks for an individual with a disability. The animal must be trained to take a specific action when needed to assist the person with the disability. Allowing an employee’s trained service animal is a form of reasonable accommodation.

However, pets used for emotional support are not considered service animals under the ADA as they are not trained to perform a specific task. Although some states and some local governments allow individuals to have emotional support animals in public places, the same may not hold true for allowing such animals in places of employment. You will need to contact your local government agency to see if such laws exist. If not, you may set a policy that prohibits pets in the workplace except for ADA-defined service animals.

Employers are limited on what they can ask an employee when it is not obvious that the dog is a service animal. Employers may only ask:

Is the dog a service animal required because of a disability?
What work or task has the dog been trained to perform?

In addition, employers are not permitted to ask for documentation for the dog, require that the dog demonstrate the task, or inquire as to the nature of the disability. The ADA does not require that trained service animals wear certain vests or collars indicating that they are service animals. Further, the ADA does not require the service animals to have a certificate of training.

Opening a dialogue with your employee about her need for the dog will provide you with guidance as to whether you need to allow her dog to remain with her at work. If another employee notifies you that he or she is allergic to dogs or dog dander, you may notify the employee with the service animal that due to the allergies of another employee, you cannot accommodate her request. However, you must engage in the interactive process with the employee with the service animal to consider other accommodations that would allow the dog to be with the employee.

Check with the Job Accommodation Network for resources to guide you in accommodating employees with service animals. If you do allow this employee to have her dog with her at work, remind her that she is responsible to ensure that her dog is always under her control and does not create a disruption to the work environment.

Question:

We are a small company of 40 employees. Are there policies we should have in place for cybersecurity? Can we make employee training on cyber security mandatory?

Answer:

Companies of all sizes are smart to be concerned about cybersecurity, especially in light well publicized ransomware attacks like the WannaCry attack in 2017. There are steps you can take to reduce the risks as the first line of defense against data breaches, malware infiltration, and various other security risks. Employees are your first line of defense and ensuring that they are trained to identify and report suspicious emails and other security threats is important. The decision on whether cybersecurity training should be mandatory is yours. You can consider assigning employees a training course and allowing them ample time to complete it or adding it to new employee onboarding activities.

It’s a good idea to train employees to:

Be skeptical—if they receive an email, view a webpage, or see a social media post with a too-good-to-be-true offer, they should think before clicking.
Report suspicious emails—give employees concrete information on how to report emails that may be phishing (attempts to get employees to share confidential or sensitive information) or fraudulent.
Ask questions like:
Do I recognize the sender’s email address?
Do I recognize anyone else copied on the email?
Is the domain in the email address spelled correctly or is it simply close to the actual URL (like amazon.com versus anazon.com)?
Would I normally receive an email from this individual?

Remind employees that they should never click on a link in an email or open an attachment until they are absolutely certain that the link or attachment is valid. You can consider a simple reminder like “Think! Don’t click!” that you include in informational emails about cybersecurity.

Finally, we do recommend having a published cybersecurity policy. Include it in your employee handbook and be sure to review it with current and new employees. Your policy should include guidelines for: