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Xcel HR Small Business HR Audit

Page 1 Questions

This is a unique HR Audit.   The questions were developed from the real world experiences of our HR Department after 20 years of providing HR support. 

After you read each series of questions, select the image that best reflects the degree of confidence you have that you know the answers and your firm is safe from potential compliance fines and/or litigation.

 
1. JOB DESCRIPTIONS
Having job descriptions from the start, and kept up to date, can help support an employer's defense in terminations, reasonable accommodation debates, and even workers compensation claims.
 • Do you ever have employee's object to work tasks with "that's not my job" but no record the employee was told what their job included?
 • Has your workers comp adjuster needed a job description so a treating doctor has more to go on than what the employee claims they do all day, but you had nothing 'in writing'?
 • Has an employee said they can't do a physical part of the job, but there's no prior employer record what the 'essential' physical needs of the job are? Please select one of the following images.
2. HEALTH REFORM
Has your current payroll vendor calculated your tax credit for 2010 based on the recently enacted Health Reform bill? Are you in compliance with all provisions? Should you be concerned with the "Play or Pay" provision? Please select one of the following images.
3. GOVERNMENT COMPLIANCE
Most, if not all, of the Employment laws referred to in this Audit apply to your business and non-compliance can cost you dearly! How confident are you that you're in total and full compliance with:
• ADA Fines up to $300,000
• FMLA Employee Lawsuit
• IRCA Fines up to $10,000
• Title VII Fines up to $300,000
• AEDA Back pay & Attorney fee's
• OSHA Fines up to $70,000
• COBRA Fine of $100/day per violation and Penalties
• HIPAA Fine $300 per day per employee
• FLSA Employee eligible for up to 3 times due back wages
• And there are MANY more. Please select one of the following images.
4. POSTERS
State and Federal required posters vary depending on your business and updates happen all the time.
• Are yours missing, dusty and outdated, or covered up by other employee bulletin postings?
• Do you have employees whose primary language is not English, but only English posters up for them to read? Please select one of the following images.
5. RECORDKEEPING
More and more employers are being audited at random for I-9 compliance, and you could be next.
• Do you have a way to track when I9 documents need to be re-verified?
• Are you auditing your I9’s in preparation for a DOL audit?
• Do you have your I9’s in separate files so the auditors don’t go through all your other dirty laundry too? Be aware, they aren’t restricted to checking only I9’s if you volunteer other documents.
• Does your State or government contract work require you to use E-verify? Please select one of the following images.
6. REASONABLE ACCOMMODATION OF DISABILITIES:
The definition of disability has been greatly expanded and the likelihood that you will have to offer accommodation increased accordingly. The simplest statement said out of concern by a supervisor can result in charges of perceived disability discrimination.
• Do your managers know not to immediately say ‘No’ to an employee objecting to a physical work requirement of their position?
• Is there a job description already in place as a basis for what the job truly requires or doesn’t?
• Does the job description include physical requirements or is it just ‘responsibilities’?
• Are your managers making judgment calls about what an employee should or shouldn’t be doing when the employee has not indicated any problems?
• If the employee says ‘I can’t do that’, does the manager know the line between asking for too little information or too much? Please select one of the following images.
7. WAGE & HOUR
Federal and many States prohibit pay deductions dependent on the issue. Docking pay outside of the law could lead to penalties or affect your ability to consider an employee not entitled overtime wages.
• Have you ever withheld an employee’s check because of unreturned property?
• Has a current employee ever owed you money for damaged property, or loans?
• Have you ever deducted an employee with or without the employee’s consent even it was because of their own poor performance?
• Have you docked a salary employee for a partial day of work missed?

Federal overtime and minimum wage requirements and other laws have a broad impact in how you handle employee wages, including timing of pay, calculation of overtime, deductions from wages, etc.
• Do you provide ‘comp time’ to your employees instead of extra wages for a heavy week of work? • Are most of your employees salaried and not tracking their time worked? How will you fulfill the employer’s burden to prove that you are complying with minimum wage/overtime law if you have no record of time worked?
• Have you ever had someone want to ‘volunteer’ or ‘intern’ for free, but do the same work as you’d need to hire an employee for?

Federal law defines the exceptions to overtime requirements based what the employees actually spend their time on each day, not simply their pay, title or responsibilities alone. Your job descriptions may describe an exempt position, but if that’s not what the employee actually spends their time on, the job description is not going to help prove a position is truly exempt from overtime.
• Do your job descriptions list a position as exempt based on the job title wording ‘manager’ or ‘administrative’?
• Do you have line managers that supervise others, but most of the time work right alongside those they supervise? Please select one of the following images.
8. INDEPENDENT CONTRACTORS
The IRS has ‘guidelines’ on when an individual is acting as an independent contractor or an employee and your workers compensation insurer will be asking you at policy audit about anyone you paid via 1099. Regardless of whether someone is called an independent contractor, if they really function as an employee, you can still be held liable for the required tax withholdings, workers compensation and other benefits your ‘employees’ are legally entitled to or eligible for under your policies.
• Do you have individuals who requested to be paid 1099 as an independent contractor, and even signed an agreement to that effect, but they are working at the same job as your staff employees? • Have you ever ended a relationship with an ‘independent contractor’ only to have them file for unemployment benefits like any other employee and the State come knocking for unpaid taxes on the 1099 wages paid?
• Do you decide how when where and with what someone completes work for you, but you call them an independent contractor? Please select one of the following images.
9. EMPLOYEE LEAVES:
Your company provides leave under FMLA guidelines, but you also provide leave to those not eligible for FMLA leave.
• Have you ever given an employee leave from work without setting the expectations at the start and regretted it months later when the employee is under the impression their job was still waiting for them?
• Are you not able to grant leave to all your employees indefinitely, but don’t have a policy anywhere that sets the guidelines?
• Do your managers know that leave may be a reasonable accommodation under ADA guidelines even if you don’t have a leave policy? Please select one of the following images.
10. EMPLOYEE PRIVACY
• Regardless of whether you think the Constitution includes a right to privacy, do you notify your employees that they don’t in your workplace?
• Are your managers monitoring for things that are unrelated to work or personal to the employee and using it against the employee when making employment decisions?
• If you are in Massachusetts, are you "WISP" compliant? Please select one of the following images.
11. ELECTRONIC COMMUNICATIONS
The Electronic Communications Privacy Act does grant employers the right to monitor electronic communications, but only under certain exceptions.
• Do you notify employees that internet use at work can be or is monitored?
• Are you monitoring consistently or only when you suspect a problem?
• Are you blocking access to sites that are not work related or likely to cause a security problem?
• If you do monitor phone calls, are you ensuring that only ‘work’ phone calls are being monitored and not personal calls too? Please select one of the following images.
12. COMPLAINT INVESTIGATION
Employment laws essentially obligate employers to promptly and thoroughly investigate any complaints of problems in the workplace, in order to argue that the company took action, determined if legally prohibited conduct was occurring, and took action to resolve any issues appropriately and reasonably.
• Do your managers understand they are personally liable if they are aware of an employee complaint and they do not initiate an investigation under your procedures?
• Do you have a procedure in place to ensure it’s not ignored as a minor problem and just brushed aside as ‘that’s how that employee is to everyone’?
• Do your managers know that complaints must be addressed even if the employee with the problem doesn’t want them to do so, but instead just want their complaint ‘on file’?
• Do your managers require a complaint to be filed in writing before considering it ‘official’? Please select one of the following images.
13. TERMINATION PRACTICES
Application of employment laws make it more and more difficult for an employer to stand by a ‘no exceptions’ policy approach without considering the context of the situation when deciding disciplinary action.
• Does your handbook clearly explain that you aren’t restricted to ‘progressive discipline’ steps?
• Do any of your policies referring to discipline limit you to a sequence of verbal, before written, written before suspension, before you can terminate an employee?
• Are employees receiving the same level of disciplinary action for the same level of violation? Are you sure your managers aren’t unequally harsher on some groups or individuals and turning a blind eye to others? Please select one of the following images.
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