Ask the Expert Series: Six answers to HR questions, featuring Bent Ericksen & Associates

Nov. 4, 2009

Ask the Expert Series: Six Answers to HR questions featuring Bent Ericksen & Associates

Question 1: I’m an employer in Pennsylvania. I just learned there is a new law protecting employees’ Social Security Numbers. Could you please explain my obligations?

Answer: The new law prohibits certain activities involving Social Security Numbers. It is unlawful to: publicly post an individual's SSN in any manner; print an individual's SSN on any card required for the individual to access the products or services provided by the entity; require an individual to transmit his/her SSN over the Internet (unless the transmission is encrypted); require an individual to use the SSN to access a Web site unless a password or unique personal identification number or other authentication device is also required; or print an individual's SSN on any materials that are mailed to an individual, except where required by federal or state law (such as a W-2 form). In no event may the SSN be visible on the mailer, such as in using a postcard.

Employers that have used Social Security Numbers prior to the legislation's effective date in a manner inconsistent with the new bill may continue to do so, provided that 1) the use is continuous, and 2) the employer provides the individual with an annual notice that informs him/her of his/her right to request that the employer stop using the SSN in that manner. Individuals who receive the annual disclosure can request in writing that the use of their SSN be discontinued, and the employer must comply within 30 days.

Question 2: I have an employee who is a military spouse. She is asking for leave under a New York law that she says mandates leave for individuals in her situation. Is this true?

Answer: Yes, this is true for all public and private employers that employ 20 or more employees in at least one location. Employees must work an average of 20 or more hours per week in order to be counted. Leave is provided to an employee whose spouse is on leave from service with the armed forces in a combat zone. Leave can be granted for up to 10 days and may be unpaid. There is no length of service requirement for the employee, and employees maintain their rights to other legally-mandated leave. Employers may not retaliate against any employee who requests or uses the leave. This law took effect August 16, 2006.

Question 3: An attorney recently informed me that I shouldn’t be documenting employee performance because it violates my at-will prerogatives. She also said that I shouldn’t have written policies because it can be used against me in a lawsuit. Is any of this true?

Answer: I think the lawyer you spoke with provided misleading information. Certainly, poorly written performance documentation and policy manuals can be detrimental and increase the likelihood of the employer losing a lawsuit. For example, use of progressive discipline policies and terminology such as permanent or probationary period can undermine at-will prerogatives. Furthermore, policies that aren’t consistently applied with all employees can lead to discrimination claims. The answer is to improve documentation procedures, write more effective policy manuals, and be consistent, but not to stop these practices altogether.

Question 4: I’m an employer in Illinois and just learned that there is a new law protecting employees’ Social Security Numbers. Could you please explain my obligations?

Answer: The law restricts the use of Social Security Numbers by private-sector employers and is designed to help protect individuals from identity theft. Employers are prohibited from:
** Printing an employee’s SSN on any materials mailed to the employee (unless state or federal law requires otherwise, as in the case of W-2 forms). Thus, SSNs generally may not be included on pay stubs, benefit plan explanation of benefits forms, and retirement plans statements.
** Publicly posting or displaying an employee’s SSN.
** Requiring an employee to transmit his/her SSN over the Internet unless the connection is secure or the SSN is encrypted.
** Requiring an employee to use his/her SSN to access an Internet Web site, including the employer’s own Web site, unless an authentication device, such as a password, is also required to access the Web site.
** Requiring an employee to use his/her SSN to “access products or services provided by” the employer. The law specifically prohibits using SSNs as employee IDs on group insurance cards.

The new law does not apply to 1) the collection, use, or release of an SSN as required by state or federal law, or 2) the use of an SSN for internal verification or administrative purposes. However, the law appears to permit the continued use of SSNs for payroll processing purposes. SSNs also may be included on materials sent by mail as part of an “application or enrollment process,” or to confirm the accuracy of the SSN being used.

If an employer started using an employee’s SSN before July 1, 2005, in a manner that would violate this law, it may continue to do so only with the employee’s knowledge and approval.

Question 5: I work in a state that only requires overtime payments when employees work more than 40 hours in a workweek. What is the defined workweek that I must comply with?

Answer: The defined workweek is any defined seven-day period you establish at your practice. For example, a workweek could be Sunday through Saturday, Monday through Sunday, or Tuesday through Monday. The employer must clearly define what constitutes a workweek and clearly communicate the definition to employees. In addition, the defined workweek must be consistently applied; it cannot change from week to week in order to avoid overtime payments.

Question 6: I recently issued a written warning to one of my employees and he refused to sign the form. I wasn’t sure what to do, so I just marked “refused to sign” and filed the form. Is there a better alternative?

Answer: The concern I have in your choice is that the employee could argue that he was never issued the warning because it doesn’t contain his signature. Other options: 1) have him sign that he refused to sign; 2) re-issue the written warning with a witness present. The witness documents his/her role with a signature. This eliminates the “he said, she said” problem; or 3) suspend the employee for a few days. Instruct him that, upon his return, he must be ready to sign the form, and failure to sign the form will be considered a voluntary resignation.

Do you have a question pertaining to HR issues? If so, CLICK HERE to submit your question for Bent Ericksen & Associates.

For more than 25 years, Bent Ericksen & Associates has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or