Human Resources Compliance: Frequently Asked Questions

By Mary R. Daulong, PT* and Teresa Daulong, LSSGB, CHSP, CHTP, CEAP, CHSRAP*

Q: Can Physical Therapist Assistant be classified as exempt employees?

A: No, based on just a clinical position description. Physical Therapist Assistants, without additional job duties, usually do not meet the job criteria to qualify for exempt status as defined by the Department of Labor. Verify exemption status based on your actual job descriptions at www.dol.gov/whd/overtime/fs17a_overview.pdf

Q: How do I know if our exempt employees (physical therapists) salaries meet the new federal salary threshold to remain exempt?

A: The threshold salary for being classified as exempt (in addition to the duties test) has been raised for the first time in many years. The new threshold is $35,568 annually, or $684/week. Salaries need to be above the threshold in order for an employee to remain exempt. Employees whose salaries are below the threshold will be non-exempt and eligible for overtime based on federal or state regulation.

Q: What is the duties test for a professional or administrative exemption?

A: To be professionally exempt an individual must meet all of the following:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week.
• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work that is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment.
• The advanced knowledge must be in a field of science or learning.
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Physical therapists do qualify as professional exemption because they meet the exception criteria.

To be administratively exempt an individual must meet all of the following:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week.
• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.
• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Note: “Primary duty” means the principal, main, major, or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.

Q: Do I have to provide sick leave for my employees?

A: Yes and no, depending upon where your practice is located. There are 15 states that have state mandated sick leave at either the state, city, or county level: AZ, CA, CT, DC, IL, MD, MA, MI, NJ, NY, PA, RI, TX, VT, and WA.¹ Be sure you are verifying requirements for your practice location. Learn more at www.patriotsoftware.com/blog/payroll/state-mandated-paid-sick-leave-laws/.

Q: True or False: At-will means I can fire my employee at any time.

A: True, however firing an employee without proper documentation or cause could leave you or your practice open to a wrongful termination suit, unemployment claims, and/or a U.S. Equal Employment Opportunity Commission (EEOC) complaint or lawsuit.²

Q: Is sexual harassment training mandatory?

A: Yes, if you are in CA, CT, DE, IL, ME, or NY. There is specific legislation specifying the type and frequency of the required training for employees and supervisors. Nationwide the EEOC has issued guidance for all employers in all states. It requires that employers should periodically provide harassment prevention training to all employees to ensure they understand their rights and responsibilities. Learn more at www.eeoc.gov/eeoc/task_force/harassment/report.cfm.

The EEOC provides free harassment training tools that can be found at https://www.eeoc.gov/eeoc/newsroom/release/10-4-17.cfm. Additionally, it is best practice to have written policies and procedures in place defining harassment and the practice’s commitment to providing a harassment free workplace.

Procedures should detail, minimally, how to report an incident, who will conduct investigations, how investigations will be conducted, associated disciplinary measures, and the practice’s no-retaliation commitment.

Q: How do I know if our minimum wage is correct and up to date?

A: Your human resources director needs to monitor not only state requirements but also city and municipalities because beginning Jan. 1, 2020, 21 different states had minimum wage increases. Additionally, some cities/municipalities implemented new minimum wages for the first-time including Denver, CO; Saint Paul, MN; and South San Francisco, CA. Check with your state or local wage and labor department to verify your rates are up to date.

The National Conference of State Legislatures provides some good resources as well as a list by state of minimum wage levels at www.ncsl.org/research/labor-and-employment/state-minimum-wage-chart.aspx or go to the Inventory of U.S. City & County Minimum Wage Ordinance at laborcenter.berkeley.edu/minimum-wage-living-wage-resources/inventory-of-us-city-and-county-minimum-wage-ordinances/.

Q: Can I ask job applicants about their prior salary history?

A: Yes, but again that depends upon your practice location. Currently 26 states have laws at either the state, city, or county level prohibiting this practice during the application or hiring process: AL, CA, CO, CT, DE, DC, GA, HI, IL, KY, LA, ME, MD, MA, MS, MO, NJ, NY, NC, OH, OR, PA, SC, UT, VT, and WA.

Q: Do I have to offer Hepatitis vaccinations to my workers?

A: Per OSHA’s Bloodborne Pathogens Standard,4 “any workers who have reasonably anticipated contact with blood or OPIM during performance of their jobs are considered to have occupational exposure and to be at risk of being infected.” Employers must document the worker’s potential for exposure and if there is a potential for exposure they must be trained about the vaccine and vaccination, including efficacy, safety, method of administration, and the benefits of vaccination. They also must be informed that the vaccine and vaccination are offered at no cost to the worker. The vaccination must be offered after the worker is trained and within 10 days of initial assignment to a job where there is occupational exposure unless the worker has previously received the vaccine series.

The employer must maintain documentation of the training and vaccine administration in the worker’s medical file. If the worker declines the vaccine series the employer must obtain a signed declination form from the worker.

Q: What type of restrictions can I make to our facility’s dress code?

A: Generally speaking, employers have the legal right to establish dress and grooming codes for employees but companies may be legally liable if their policies are found to discriminate against employees based on gender, a violation of Title VII of the Civil Rights Act of 1964. Additionally, verify state and local legislation to ensure that your requirements are not in violation of new protections such as the CROWN Act in California. If an employer chooses to have a dress code, it would be prudent to make certain that there are not different standards for men and women and to ensure that the policy is enforced consistently.

Q: Do employees have a legal right to access their personnel files?

A: While there are no federal laws governing access to personnel files, many states have enacted laws allowing employees to review or copy certain documents. Nearly 20 states have laws relating to an employee’s right to view or copy some documents in their personnel files. The laws vary so it is important to research what your state permits or restricts.

Q. Are physical therapists required to report domestic abuse of a patient?¹

A: Minimally, it would be prudent to contact the patient’s attending physician so the matter can be discussed, and decisions made. Documentation should be limited to actual observations in objective language. There should be no speculation about the circumstance of the injuries, however exact quotes from the patient maybe recorded.

All but three states have enacted mandatory reporting laws, which require the reporting of specified injuries and wounds, and suspected abuse or domestic violence for individuals being treated by a healthcare professional. Mandatory reporting laws are distinct from elder abuse or vulnerable adult abuse and child abuse reporting laws, in that the individuals to be protected are not limited to a specific group, but pertain to all individuals to whom specific healthcare professionals provide treatment or medical care, or those who come before the healthcare facility.

Mandatory reporting laws vary between states, but generally fall into four categories: 1) states that require reporting of injuries caused by weapons; 2) states that mandate reporting for injuries caused in violation of criminal laws, as a result of violence, or through nonaccidental means; 3) states that specifically address reporting in domestic violence cases; and 4) states that have no general mandatory reporting laws. According to FindLaw, “state laws typically don’t require that the healthcare provider tell the patient about the report, though it is encouraged, if possible. However, federal law requires that the healthcare provider tell the patient if a mandatory report is going to be sent out, so that the patient understands and can prepare for local law enforcement to engage with them.

The exception to this federal rule is if telling the patient about the report puts the patient at risk, the healthcare provider doesn’t need to tell the patient about the report per Thomas Reuter with The Answer Company.^4,5

Q: Can I prohibit employees from discussing their salaries, bonuses, etc.?

A: No, you cannot prohibit employees from discussing their salaries. The 1935 National Labor Relations Act as well as a 2014 Executive Order allow employees the freedom to discuss pay and working conditions. Additionally, multiple states have legislation protecting employee’s rights to discuss and share salary information and/or prohibiting a non-disclosure that limits salary discussions.^6,7

Q: Do I have to provide a private room for lactating employees?

A: Yes, the Fair Labor Standards Act requires employers to provide reasonable break time as well as a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.⁸ Twenty-nine states also have additional legislation protecting breastfeeding in the workplace, which may include additional room specifications or proximity to water or a refrigerator: AR, CA, CO, CT, DE, GA, HI, IL, IN, LA, ME, MI, MS, MO, NH, NJ, NM, NY, ND, OK, OR, RI, TN, TX, UT, VT, VA, WA, and WY.

Q: How long do I have to keep personnel employee files?

A: Federal requirements include:

• One-year retention from date of termination for selection/hiring/employment records. However, the Age Discrimination in Employment Act (ADEA) has a three-year retention for payroll and related records.
• Form I-9 must also be kept for a minimum of three years or one year after termination, whichever is later.
• FLMA leave records are subject to a three-year retention period.
• Safety information (workplace injuries/illness, exposures, etc.) have a five-year retention or employee tenure plus 30 years if related to an employee incident/exposure under OSHA.
• Employee benefits records are subject to a six-year retention under Employee Retirement Income Security Act (ERISA).

Often, employers will use a seven-year rule for purging terminated/resigned employee files as this typically covers state and federal statutes of limitations; although shorter retention periods may suffice for some records such as I-9 forms and longer periods may apply to other records such as OSHA exposure records.⁹

It is important to note that all applications and resumes reviewed for any position must be retained for a minimum of one year from the hire date for that role per Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the ADEA. 

References:

¹United States Department of Labor: Wage & Hour Division. Family & Medical Leave Act. https://www.dol.gov/agencies/whd/fmla

²United States Department of Health & Human Services: Equal Employment Opportunity Commission. The Age Discrimination in Employment Act of 1967. https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html

³United States Department of Labor: Occupational Safety & Health Administration. Bloodborne Pathogens Standard. https://www.osha.gov/SLTC/bloodbornepathogens/bloodborne_quickref.html

⁴Family Violence Prevention Fund. Compendium of State Statutes and Policies on Domestic Violence and Health Care. https://www.acf.hhs.gov/sites/default/files/fysb/state_compendium.pdf.

⁵Mandatory Reporting of Domestic Violence. FindLaw.com. https://family.findlaw.com/domestic-violence/mandatory-reporting-of-domestic-violence.html

⁶Obama B. Executive Order — Non-Retaliation for Disclosure of Compensation Information. White House website. https://obamawhitehouse.archives.gov/the-press-office/2014/04/08/executive-order-non-retaliation-disclosure-compensation-information

⁷US Department of Labor. Pay Transparency and Equal Pay Protections. https://www.dol.gov/wb/EqualPay/equalpay_txt.htm.

⁸US Department of Labor. Fact Sheet #73: Break Time for Nursing Mothers under the FLSA. https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers

⁹United States Citizenship & Immigration Services. Employment Eligibility Verification. https://www.uscis.gov/i-9

Mary R. Daulong, PT, CHC, CHP, is a PPS member and is the CEO/President of Business & Clinical Management Services, Inc., a compliance consulting firm. She may be reached at daulongm@bcmscomp.com.

Teresa R. Daulong, LSSGB, CHSP, CHTP, CEAP, CHSRAP, is the Vice President of Business & Clinical Services Special Compliance Services. She may be reached at daulongt@bcmscomp.com.