How HR professionals can navigate research challenges
Posted August 16, 2017
By Ed Zalewski, PHR, editor, J. J. Keller & Associates
You’re reviewing an employee’s request for medical leave when the CEO knocks on your door and says, “Next year, we want the company to pay 80 percent of the health insurance premiums for managers, but continue paying 60 percent for the hourly employees. Would that be legal?”
As a human resources professional, you may regularly get questions asking if the company can take a particular action. In most cases, your company can take an action if:
- A law or regulation specifically allows it, or
- No law or regulation specifically prohibits it.
When something is explicitly permitted, you can feel confident moving forward. For example, if some employees regularly receive tips, you may pay less than minimum wage and take a tip credit. You must also do things that are required by law, such as providing workers’ compensation insurance.
In addition, your company probably does many things that are not required, such as giving paid holidays or offering a retirement plan. These non-mandatory activities may, however, still raise legal issues. For example, if your company performs pre-employment drug testing, you may need to keep up with court decisions regarding state medical marijuana laws.
Showing that something is not prohibited may require proving that no conflicting law exists. Philosophically, proving that something doesn’t exist (or proving a negative) is impossible. In a legal context, however, you can prove that no law exists – but doing so may require poring over hundreds of pages of laws and regulations. The Internet provides a quick way to search multiple sources, but has its own drawbacks.
Online research challenges
Using an Internet search engine introduces an entirely new set of challenges. A search may provide so much information (and sometimes conflicting information) that you aren’t sure what is relevant or trustworthy. Questions to consider when reviewing research results include:
- Did your search use the right words? Finding answers requires knowing which terms to include in your search. For example, if you are researching how to report taxes on short-term disability pay, it helps to know that the Internal Revenue Service doesn’t use the term “short-term disability” but instead calls it “sick pay.”
- Is the resource current? A search may return articles or guidance that are no longer valid, but are still posted. For example, an article on how to administer a health plan from 2009 (before the Affordable Care Act) may be obsolete.
- Is the site reliable? Information from a government website or law firm is usually reliable, assuming it is current. However, information from third parties (especially blogs) may not be accurate. Be wary of relying on third-party information if no source citation is provided.
When you’re trying to prove that there is no law prohibiting an action, searching becomes more complicated because you’re trying to prove a negative. This may raise the question: At what point have you searched enough?
In most cases, the answer is: When you feel confident that you’ve done your due diligence, and determined that the benefits of taking the proposed action outweigh any potential risks that you might have missed. Such a determination will often be made after consulting an attorney.
When a clear answer simply does not exist, the decision to move forward may come down to an analysis of whether your company is willing to defend its decision, and the likelihood that such a defense would be necessary.
About the author:
Ed Zalewski is a certified Professional in Human Resources and an editor at J. J. Keller & Associates, a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Zalewski specializes in employment law topics such as the Fair Labor Standards Act, employee benefits, and discrimination and harassment. He is the author of J. J. Keller’s FLSA Essentials guidance manual and BottomLine Benefits & Compensation newsletter. For more information, visit www.jjkeller.com/hr and www.jjkellerlibrary.com.