501(c) Agencies Trust

HR frequently asked questions

Find answers to common HR questions nonprofits face.

• Is our organization obligated to allow current employees to review their HR files? What about former employees? Is the employer obligated to make copies of HR files as well?

  There is no federal law that requires private employers to provide employees access to their HR files.

  Requirements to access HR files are guided by state law. Seventeen states have some provisions governing employees rights to access their personnel file: Alaska, California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin. The provisions and wording vary widely from state to state.

  The provisions often address issues such as:

  • Who has access (current and former employees)
  • How frequently they can access it; how to obtain copies
  • Exceptions to the information employees can access
  • Prohibitions on the kinds of records that can be kept
  • How record corrections can be made
  • What legal remedies are available
  • What information can be disclosed to third parties

  Please keep these items in mind when developing a company personnel file access policy.

  Although you may not be required by state law to allow access, it is simply good practice to allow your employees an opportunity to review their HR files. Honesty and openness create a positive environment where employees are aware of documentation about their employment. Thus, they won't feel that their employer is trying to hide something.

  Nothing should go into HR files without employees' awareness and usually not without their signature. A copy of the information should be provided to the employee as well. Your employee handbook should provide clear guidelines about how to handle access, frequency, reproduction of information, and disagreements with the information.

  Be sure to check your specific state provisions when making policy decisions. The HR Services hotline can provide you with your state's provisions. Call (800) 358-2163 or e-mail mmarfell@jointtrust.org.

• Are we required to pay our employees for days when the employer's business operations are closed due to inclement weather or natural disasters?

  The answer to this question depends on whether the employees are classified as exempt or non-exempt under the Fair Labor Standards Act (FLSA).

  Employers that want to preserve their employees' exempt status are prohibited from making deductions for absences caused by the employer or by the operating requirements of the business. If employees are ready, willing, and able to work, then no deductions can be made because work is not available. For example, when a snowstorm hits and business operations are closed for a day or two, there is no way of knowing who would have been able to make it to work had the business been open. Therefore, you must assume that all your exempt employees were ready, willing, and able to come to work, and you must pay them accordingly.

  Does this mean that an employer is obligated for payment of wages in the case of extended closing of business operations? In cases where businesses may have to be closed for extended periods of time because of an earthquake or flood damage, employers are required to pay wages for any week in which work was performed or they risk losing the employees' exempt status. However, there is no requirement to pay wages for a week in which no work was performed.

  On the other hand, employers are under no obligation to pay employees classified as non-exempt under the FLSA for days when the business operations are closed. As an employer, you are obligated to pay non-exempt employees only for actual hours worked. Refusing to pay non-exempt staff when you pay exempt staff could create a morale problem, especially when several of your payroll staff are classified as non-exempt. You may at least want to consider allowing them to use a personal or vacation day for compensation.

  Also keep in mind that when employees show up for work because they have received no notification that business operations are closed, then the employer may be responsible for payment of wages. Thus it is important to arrange a line of communication to notify employees of business operation plans in case of inclement weather or a natural disaster.

• Must we have non-exempt (hourly) employees fill out time sheets?

  Employers are not specifically required by the FLSA to have their employees fill out time sheets, but the FLSA and various other federal and state laws require employers to maintain records concerning hours of employment, so some form of time recording is necessary. Acceptable methods of recordkeeping are all means that produce accurate information, including the use of time clocks and time sheets.

• What guidelines should an employer follow when investigating allegations of sexual harassment?

  When an employee complains of sexual harassment, the employer must take the complaint seriously. Employers have an obligation to investigate promptly and take appropriate action to minimize legal liability, not to mention restoring the Trust and morale of its employees. The individual conducting the investigation needs to be knowledgeable about the organization and its employees and be able to gather all the facts in an objective and professional manner.

  The following are guidelines when conducting an investigation:

  • Interview the employee claiming sexual harassment. Assure the employee that no retaliatory actions will be tolerated and that he/she should report any incident of retaliation. Listen carefully and write down all the facts, such as dates, times, witnesses, and so forth. Use open-ended questions, such as what, when, where, and how. Let the employee tell the story without interruptions.
  • Interview any potential witnesses.
  • Interview the accused (using the guidelines above). Inform the accused that retaliation is strictly prohibited.
  • Attempt to reconcile conflicting statements.
  • Make a final decision. If sexual harassment has occurred, apply and document appropriate discipline.
  • Follow up periodically with the employee claiming sexual harassment to ensure that no further incidents or retaliation occurred. Document such follow-up visits.
  • Keep all investigative documentation in a separate HR file.
  • Consider reiterating the sexual harassment policy to all the employees.
• What effect does FMLA have on workers' compensation laws?

  Leave taken under workers' compensation laws and the FMLA may run concurrently, but an employer cannot require an employee to substitute, under FMLA, any paid vacation or other leave during an absence covered by payments from state workers' compensation funds.

  In addition, an employee who is receiving workers' compensation benefits and is also taking family leave cannot be forced to return from family leave to take a light duty assignment. However, a refusal to take a light duty assignment could mean suspension of workers' compensation benefits under applicable state laws.