“Use-it-or-lose-it” vacation policies

The Colorado Department of Labor (CDOL) announced that “use-it-or-lose-it” vacation policies would no longer be permitted. However, they then admitted materials on the subject were “Not clear.” Now they’ve released an FAQ, which continues the confusion. Here are some takeaways:

  • If you have a use-it-or-lose-it policy, it must clearly explain vacation earnings and accruals
  • Definition of when vacation is earned is critical
  • Value of vacation earned when an employee leaves must be paid
  • If you want to change your policy, it cannot be retroactive

You could put a cap on how much vacation is earned, require employees to use accumulated vacation before additional time could be earned, and have a policy clearly stating vacation pay is not earned until employees work the specified amount of time. But until further clarification, it looks like the employee must be paid for all earned and unused vacation time.

Thanks for the overview from Fisher & Phillips, found here: http://www.laborlawyers.com/colorado-department-of-labor-clarifies-vacation-pay-position


it’s a tough one – workplace violence is real!

You no doubt have seen the video or at least heard about the horrific shooting in Virginia yesterday (8/26/15), described as a “workplace violence” incident. As a Human Resources leader, and the one who often gets the “911 calls” at work, I sometimes ask myself how my company would react if a person was intent on doing an employee harm. Over the past 35 hours, the question has consumed much of my time. Workplace violence is the second leading cause of death on the job, behind only traffic fatalities. We have no federal workplace violence standard, but experts tell us “having a policy in place, no matter how small or large the business, is a necessity.” 

In 1970, OSHA set out to prevent workers from being killed or seriously harmed at work. They say employers must provide employees with working conditions that are free of known dangers. That’s the problem – as employers, we are typically unaware that something as tragic as a shooting, assault, or any kind of violence would actually happen in OUR company. Experts, and there are many of them, will tell you how to ensure workplace safety. But there are as many “ways” as there are experts. Many of their “tips” are solid advice. For me – I’ll be listening closely to all my employees, terminating with compassion and caution, training leadership to spot aggressive behaviors, and what to do with that information… Nope, I do not believe we can eliminate some people from doing harm to other people, but we can try. As I often recited as a Boy Scout: “On my honor, I will do my best…” SLL

Ready for Sorry Charlie Day?!

April 6th is “Sorry Charlie Day;” when we accept negative events and learn from them | http://tinyurl.com/pdrpkma It’s a celebration to “recognize people who went through rejection and came out of it stronger.”

And by the way – our next Cobb GEM meeting is May 20th. In the meantime, the 25th Annual SHRM-Atlanta HR Conference is just 2 weeks away; April 20-21 at Cobb Galleria Centre. http://tinyurl.com/nt7ap6a

March 17th – it’s St. Patty’s Day, sure but did you know….?

March 17th – known by many to be the annual celebration of St. Patrick’s Day. But SURPRISE – it’s also National Corned Beef and Cabbage Day. St Patty’s Day info

Corned beef and cabbage evolved from Irish bacon and cabbage; it was Irish immigrants to America who quickly swapped in corned beef as a much less-expensive substitute. Corned beef and cabbage became popular in the States, but you’d be hard-pressed to find a restaurant in Ireland that serves it.

Although green beer for St. Patrick’s Day is common in America, the Irish traditionally would not even consider it in their celebrations, according to Kenny Mitchell, General Manager at Murphy’s Alexandria, located at 713 King Str.

How ever you celebrate March 17th, please do so with a sound mind and happy heart.

Me…? I’ll still be looking for a job.

Best regards,

Steve Lovig | http://www.linkedin.com/in/SteveLovig

Wellness Programs Challenged by EEOC

Watch Out – the Equal Employment Opportunity Commission is Heading Toward your wallet; they File Lawsuits Challenging the Voluntary Nature of Wellness Incentive Programs.


In the past three months, a regional office of the EEOC has filed three lawsuits against companies in relation to their wellness programs for perceived violations of the ADA and GINA. To date, despite pressure from many groups, the EEOC has not given definition to the amount considered voluntary, which creates ambiguity.

The positioning of the incentive as a penalty was also a factor in all three cases.

Key Impacts

It is critical that a wellness incentive program is voluntary. The structure and positioning of the wellness incentive program should be positive and not a penalty or surcharge.

Until the EEOC provides guidance, it will be difficult to understand what amount constitutes voluntary. However, ACA guidelines defined an allowable maximum of 50% of the total premium for programs targeting tobacco use. So, that number can be used as a guide for what is acceptable across all incentives. Note that the risk reduces as the amount reduces.

We’ll be watching this. I’ll provide updates when available.


Thanks to Andy Carr, Health Management Services Product Leader, The Oswald Companies, and Andrea Esselstein, J.D., The Oswald Companies, for their original article.

The Future Is Now!!

 You may remember the Saturday morning cartoon, The Jetsons.  They had flying cars, wrist watches that doubled as phones, and video-based communications; we do not have the flying cars yet, but we do have wrist watch-based phones, and we have videophones.  And those videophones are set to take over the job hunting interviewing process.


About 25% of companies are taking advantage of Skype and what it has to offer.  The most obvious usefulness is how well prepared and/or serious a candidate will be when doing this interview. Get familiar with the technical aspects of Skype – use it with family or friends a few times so that you will be prepared when (not “if”) you are asked to be a part of a Skype interview.  Ensure you are not constantly looking down toward your monitor, but instead, like a TV reporter is taught to do; look at the camera, and think of it as the “eyes of your interviewer.” 

 A couple more Skype etiquette tips:

  • Even though you will most likely be doing your Skype interview from home, be sure to look your best!  Use the same professional dress code you would follow for an in-person interview. 
  • Avoid distractions:
    • Turn off other computer programs
    • Turn off your cell phone
    • Close doors to avoid children, pets, or other interruptions.
  • Ask for a contact number once you have logged in; in case any technical challenges arise, you’ll be able to call them back. 
  • Ask the interviewer if they can see and hear you well, before the ‘official’ start of the interview, so you can make any needed adjustments. 

Good luck with your job search, and have fun with your Video interview!  

Welcome to the World of the Effective HR Investigation

When bad stuff happens on the job, you need to secure your “HR Investigator hat” tightly, and follow these three steps:

1.  Find as much DATA as possible about the situation – emails, phone records, texts, etc.; anything in print or digital that helps you get your head around what you’re dealing with.

2.  Create a list of people you need to talk to.  Order them in a way where early interviews are really about collecting data to add to #1.  As you get later in your interview schedule, you will talk to people closer to the issue in question.

3.  When you start interviewing the primaries in the situation (those who know what the truth is, you just have to get it out of them) you do the following:

a. Use the data you have to gradually rein them in to agreement on the general situation in question.

b. Use critical data points to test if they are telling you the truth – you generally need data from #1 to do this.

c. If you catch them in a lie related to 3b, use that fact to leverage them to come clean and give you even more than they were going to.

d. Repeat. Don’t be scared to stay in an interview for a couple of hours if needed.  These are often tough conversations


Welcome to the world of the effective HR investigation.  If it sounds like nasty business, that’s because it can be.  The best HR Leaders are really good at what I’ve outlined above.  What suggestions would you add to my list?

When to and When NOT to Dock an Exempt Employee’s pay

This info is for all – but please note in Georgia, we kinda geek out when “snow” or “ice” is mentioned in the forecast. Yes, even if they say “Less than an inch expected..”

(Originally posted in 2014; Rulings are still the same. Dock with Caution!) 

If the suspected ‘wintry-mix’ hits us, offices and factories may be caught up in closing or not closing, and then paying or NOT paying? Certain rules apply and employers must be cautious. Improper deductions from exempt employee salaries may adversely impact the exempt status of all exempts.

YES, YOU CAN DEDUCT: Mark Tabakman referenced Allyson Kurker of Kurker Paget LLC, who blogged about this; the message bears repeating. First, non-exempt employees may be docked more easily than exempt employees; that’s straightforward.  Second, the DOL has issued guidance (FLSA2005-41 Opinion Letter) that outlines when you can deduct. If the business is OPEN and an exempt employee does NOT get to work, the employer may make a full day pro rata deduction. That is because the employee has voluntarily chosen to absent himself from work for “personal reasons.” The full-day, personal-reason deduction is allowable under the FLSA regulations.

HERE IS ONE CATCH: When the office is open, an exempt employee who has no accrued benefits in their ‘leave’ account does not have to be paid for the full day She fails to report to work due to weather-related stuff.

If the employer CLOSES down, then no deduction can be made on exempt employees. This is because the employee (in theory) is “ready, willing, and able” to come to work, but due to the business decisions, based on bad weather, the employer has closed and, therefore, no work is available for the employee, even though he is ready to work.

OPEN, BUT THEN CLOSED? If the employer opens up in the morning and later shuts down as the weather gets progressively worse, the rules change slightly. Although the employer may not make a cash deduction from an exempt employee’s salary for the few hours that are not worked in an early closing situation, the employer is allowed to ‘compel’ the exempt employees to take hours from their leave banks to “make up” for the work hours lost. Note, however, that if the exempt employee exhausts all such time, the employer cannot then make the above-referenced cash deduction from the salary.  In that situation, the employer must pay the exempt employee.

HOURLY EMPLOYEES: Federal statutes say you only PAY HOURLY employees when they “work.” If the office is closed, then an hourly employee could not work, and does not get paid. Caveat for taking work home.

TO PAY OR NOT TO PAY? If you pay the exempts (often managers and executives, often ’cause you HAVE to) but decide NOT to pay hourly employees, you could be setting up discord and major unhappiness among the troops. Consider alternatives.


I help organizations answer their HR and People concerns before they become BIG, EXPENSIVE DEALS. Call 404-791-7454 or email Steve.Lovig@gmail.com for a FREE appraisal.