Only Human
By Betsey Nash, SPHR

When hiring or promoting a department head at Home Depot, I was careful to explain that their salary was based on an expectation of their putting in about 55 hours a week.
This wasn’t a 40-hour-a-week job and they were paid accordingly. Not long after I left, the company settled a class action lawsuit brought by assistant managers and department heads who claimed, and from my experience rightly so, that they were spending more of those hours on regular employee tasks than on management duties.
They said that if they were throwing freight they should get overtime pay, too. In California, a manager has to spend more than 50% of their time on managing, not counting inventory, helping customers with routine requests, or cashiering, in order to be classified as exempt.
The upshot of the case was that some management employees were reclassified as “non-exempt,” and thereafter were eligible for overtime and breaks. I am sure the company had to pay a fortune in penalties and back pay for missed overtime and breaks.
Now the classification criteria established by the Fair Labor Standards Act is about to be changed, and the result will undoubtedly be more exempt employees reclassified and qualifying for overtime. The feds are expected to adopt California’s standard of 51% on the “duties” test and to raise the salary threshold.
The salary threshold is the cut-off beyond which white-collar workers are no longer eligible for overtime. It is currently $23,600 (or $11.37 an hour for full time), which sounds low in San Francisco and New York, but makes sense in cities where the standard of living is not as high.
It is rare to find a manager, especially in retail or hospitality, who is not spending time doing regular duties. So put it on your radar — audit your employees’ duties and pay now so you are not caught by surprise in the fall, when the new standards (not yet known) are expected to go into effect.
Guidance is coming soon for “wellness programs.” Employee wellness programs have long been recognized as contributing to job satisfaction, as well as reducing medical and health insurance costs for the employer.
The Affordable Care Act established maximum levels for employee incentives and tobacco cessation programs as high as 30%–50% of the cost of health care coverage, which is quite a testimony to their effectiveness. But they must be voluntary.
The EEOC has recently filed lawsuits against companies that imposed financial penalties on employees who did not participate. If they didn’t offer a reasonable alternative or waiver, penalties could be discriminatory against a disabled employee.
And there’s a privacy concern, as well. Employers must have procedures in place to safeguard private medical information even as they measure weight, blood pressure and other wellness metrics in order to track and award improvement.
Yes, it’s complicated, but there are best practices tips out there to help you. Google the non-profit “Employee Benefit Research Institute” or the “National Business Group on Health.” And watch for rules from the EEOC that should help clarify the interaction between the ADA and wellness program incentives.

Betsey Nash, SPHR, is a certified senior professional in human resources, sits on the county Civil Service Commission, and is past president of the Human Resources Association of the Central Coast. She can be reached at: . Only Human is a regular feature of the Tolosa Press.