3 Wage & Hour Actions to Avoid

2025 was one of the most successful years for the United States Department of Labor (USDOL) in collecting settlements for Fair Labor Standards Act (FLSA) violations. According to the USDOL, $259 million was collected in back wages for nearly 177,000 employees during fiscal year 2025, which was reported as the largest amount recovered since 2019.

What are three actions you should be cautious about as an employer?

1. Unpaid Overtime or pay errors. For non-exempt employees, all hours worked past 40 hours must be paid at time and one-half. Be careful to review your payroll to ensure that employees are being properly paid and there are no overtime mistakes. Encourage employees to report any pay errors as soon as possible so that they can be rectified.

2. Misclassifying employees. Remember, you are classifying an employee as either overtime eligible (non-exempt) or overtime exempt based on the duties performed, not the title or the person performing the work. There are three overtime exemptions under the FLSA, and you should carefully review and conduct a thoughtful analysis to make sure you are classifying an employee properly. Also, be cognizant of properly classifying an individual as an employee versus contractor - know the difference.

3. Off the clock time not being paid. If an overtime eligible employee performs any kind of work after hours (i.e., responding to an email, answering calls, etc.) or works during their lunch period, they should be compensated, regardless of the amount of time spent. Tis also encompasses on-call time as well as call-out time.

During 2026, the USDOL has issued 10 Opinion Letters covering topics such as the Portal-to-Portal Act, payment for pre-shift activities, meal breaks, bonus payments, commission employees pay, travel to/from medical appointments and the application to FMLA, and FMLA for teachers during calamity days. It is a good practice to review these Opinion Letters as it allows you to see the direction and philosophy of the USDOL and will aid you in being on the right side of compliance.

Clarity Concepts is here to assist you if you have any questions or concerns regarding FLSA compliance.

#overtime #FLSA #exempt #nonexempt #employeepay #compliance

Why the Employee Turnover Metric Matters

Tracking and measuring employee departures is one of the most meaningful metrics in a company. While exit interviews tell you a written story, the turnover or employee separation metric gives you data in terms of percentages and allows you to look closely at specific departments, roles, or overall company effectiveness with respect to talent.

How do you find your employee turnover number?

Divide the number of departures in a given period (month, quarter, year) by the average number of employees. This can also be reflected by voluntary separations (retirements, resignations) and involuntary separations (layoffs/downsizing, involuntary terminations).

Once you have your number, compare it to your industry and/or geographic area to see how you compare. Revisit your number at least annually to see if you have made improvements.

In combination with the information from the Exit Interview, this metric will allow you to look more closely at:

• culture and employee satisfaction

• hiring and training needs or disconnects

• performance and/or productivity standards (are there unreasonable, for example)

• difficult or ineffective supervisors or managers

• pay concerns or lack of opportunities for growth

The first step is getting started. Next, share the information at your next management meeting and take a deep dive into what the data tells you. Are there improvements you can make? How will you get there? Be forward thinking and measure the improvement as well.

#employment #turnover #turnovermetric #culture #retention

Exit Interviews and Why They Help You Identify Areas to Improve

Yes, exit interviews can sometimes be exhausting. And yes, a departing employee might be hesitant to give you open and honest feedback. And yes, there are going to be times when you don’t want it verbalized because you know you have a problem.

But exit interviews are useful tools when handled correctly and can deliver important information allowing companies to make improvements. Let’s dive in to why exit interviews are important:

1. Identify areas for improvement, such as workload, work environment, compensation, benefits, training & development, and work-life balance.

2. Identify areas of concern, including problematic managers, ethical issues, bullying, or discrimination.

3. Review offboarding procedures, such as language regarding non-compete, non-disclosure or non-solicitation agreements as well as intellectual property.

Employees are generally not required to participate in Exit Interviews, but you should make every effort to encourage employees to do so. And keep in mind, these departing tasks can be handled in multiple ways - interview style, via Survey Monkey or Google Form, as well as providing feedback anonymously.

So how do you get better information?

1. Use targeted questions. Instead of asking “YES or NO” if the employee liked working here, ask “Which benefit did you find the most desirable and why” and “Which benefit would you recommend we improve and why"?”

2. Ask employees HOW they used their strengths at your company and which strength did they not get to use. This will also help you in recruiting for their position.

3. Make the exit interview easy to complete. If interview style, keep the meeting to 30 minutes or less. If survey style, keep the questions to between 10-20 questions.

4. Don’t wait until the last day. A lot is going on during the employee’s last day and the interview will feel rushed. Schedule the interview at least one week before the employee’s last work day.

5. Thank the employee. It’s a small gesture that can go a long way. And don’t forget, a departing employee can either be a positive or a negative in your recruitment process. Thank the employee for being part of your team and wish them much success in their new role.

Lastly, don’t toss exit interview data into a folder (paper or electronic) and do nothing with it. Share key points at your next manager’s meeting and always be looking for ways to improve. Make the process meaningful.

#performance #exitinterview #employeefeedback

4 Reasons Employees Are Terminated

While it’s never easy terminating an employee, there are generally four reasons that an employee is subject to termination of employment.

1. Performance - Due to Attitude. Often this is associated with an employee who refuses to learn or adapt. Could also include bad work habits, such as attendance, lack of collaboration, not returning emails timely, missed deadlines, creating conflict with coworkers/being confrontational. If your attitude is getting in the way, try to reframe or working on finding another position before you are labeled as problematic or not likeable (and yes, that label happens in today’s workplace).

2. Performance - Due to Skill Sets. Companies are matching people to work by looking at skill sets. Are you learning about AI, for example. The nature of work is changing rapidly and skill development is critical. Acquiring skill sets that separate you from your colleagues and add value to the company can make the difference in your continued employment.

3. Performance - Due to Misconduct. Serious violation of company policies, such as workplace violence, theft, harassment, bullying. Failure to follow established rules, policies, procedures or expected workplace behaviors will generally result in termination.

4. Company Financial Performance - Reductions in Force, Voluntary Retirements, Layoffs, Furloughs. There are going to be times when a good employee is terminated due to a company missing their financial goals.

#termination #misconduct #attitude #skillsets #performance #companyfinancials

5 Signs That Every Manager Should Pay Attention to Signaling a High Performer is on Their Way Out

According to the Society of Human Resources (SHRM), losing a high performers can cost a company between 50% to 200% of the employee’s annual salary. These costs can include the dollars associated with recruiting a new employee, onboarding and ramp up time, loss of unfinished work/delays in meeting project deadlines, loss of institutional knowledge, burnout from peers who are taking on the extra workload, and impact on morale.

What are the 5 signs that a manager should pay attention to that signal a high performing might be leaving?

1. Changes in attendance. The employee might have been working extra hours and rarely taken time off before, but is now arriving late, leaving early or using PTO.

2. Low participation in meetings. The employee was quick to share ideas in meetings, but is now passive and quiet.

3. No commitment to long-term projects. The employee would normally take the lead or help with the strategy or timeline, but is now being passive because he or she does not see a future with the company.

4. Burnout becomes more obvious. The employee has been working without support or had been given unrealistic work expectations and is now checking out or slowing down due to the burdensome workload.

5. Technology has created challenges rather than making their job easier. High performing employees are looking at ways to improve. If technology is outdated (think old ERP systems or still holding onto paper copies), employees will begin looking elsewhere.

If you’re seeing these signs, take action now. Talk to the high performing employee and ask how you (or the company) can better support the employee. Doing nothing will only speed up their departure.

#highperformer #burnout #separation #manager #performance

You’ve Inherited a Team After Their Manager Was Let Go, Now What?

You’ve just been promoted to lead a new team. The previous manager was recently let go and you need to help this team rebuild and get back on track. Definitely a difficult and challenging conversation road ahead. What do you say and how can you help them move forward?

1. Be honest with the team members and realize that they might be struggling with the recent events. It’s often a good first step to acknowledge what’s happened and say, “I know this has been a lot and I appreciate how much you’re trying to do.” The goal is to help your team to acknowledge life is different, focus on moving forward, and not dwell on what’s just happened.

2. Celebrate the little things and don’t pile on right away. Momentum will happen, but it may take time. Staying calm and being understanding will help, but remember to acknowledge the small wins or small contributions when they happen. This is as simple sa saying thank you or door dashing a coffee to a remote employee.

3. Share with the team why their work matters and how it impacts the company. Simon Sinek advocates that employees need to understand the “why”. Sinek says that people know what to do and how to do it, but in order to motivate them, they need to know why they’re doing it. Share the why.

Be patient and consistent. Meet with your team members regularly for one-on-ones and don’t forget during these one-on-ones to ask each person how they’re doing, what they’re doing well this week, where they’re stuck, and how you can help.

#difficultconversations #manager #teams

USDOL Confirmed the 2019 Salary Threshold for Exempt Determination

In May 2026, the U.S. Department of Labor confirmed that the 2019 Salary Threshold of $684/week or $35,568/year is the correct threshold being followed and enforced. Not the threshold levels from 2024 and 2025 under the previous presidential administration. Two federal district courts in Texas cleared the way allowing the DOL to move forward with confirming the 2019 salary levels.

Salary threshold is only one of the components in determining if a position is exempt with the other being the Duties Test. There are three categories of FLSA overtime exemption: Executive, Professional and Administrative.

Key takeaway: Take the time to review your position descriptions, update as needed, and determine if the position (not the person!) is overtime eligible or overtime exempt.

Immigration & Customs Enforcement of I-9: Are You Compliant?

In March 2026, ICE quietly updated its fact sheet titled Form I-9 Inspection Under the Immigration & Naturalization Act. This update supersedes nearly three 30 years of enforcement under the 1986 Immigration and Naturalization Act and changes how ICE has categorized substantive or serious violations versus minor technical violations.

Why is this change in enforcement practice important to know?

Previously, there were ten technical error categories, in which employers were given the opportunity to correct them and avoid civil penalties if corrected within a ten business day period. These have now moved to substantive violations (see page 4 of the fact sheet for a complete listing) and these violations carry fines of $288.00 - $2,861.00 per form. There are additional penalties if you knowingly hired or continued to employ individuals with faulty I-9 forms.

Three recommended steps to take now:

1. Make sure you are properly completing your I-9 forms. Paper copies of supporting documents are not enough. Make sure every line has been fully completed.

2. If using electronic system for filing your I-9 form, confirm the audit trail and signature functions.

3. You may want to consult an attorney specializing in employment compliance to assist you in this process, especially if you have concerns that your process might not be compliant.

Now more than ever it is important to dot your i’s and cross your t’s.

FMLA Interference: 5 Actions to Avoid

If you are a manager or responsible for receiving and reviewing requests for Family and Medical Leave absences, below are five actions to avoid to ensure you are not interfering or restricting an employee’s FMLA rights.

Remember, FMLA is job-protected leave.

1. Discouraging an employee from taking leave because it’s a busy time, you have reduced staffing, or that taking leave would impact their opportunity to move up in the company. FMLA is job-protected leave.

2. Delaying approval or requiring an overabundance of documentation.

3. Counting FMLA use negatively toward attendance points or pay increases.

4. Using FMLA leave in a negative manner toward job actions, including promotions, transfers, and disciplinary actions.

5. Requiring the employee to work during their FMLA leave, answer calls, or respond to emails.

The FMLA prohibits employers from interfering with, restraining, or denying the exercise of rights provided under the Family and Medical Leave Act. See also 29 U.S.C. 2515(a)(1) and 29 CFR 825.220 of the Code of Federal Regulations.

In Loco Parentis & FMLA

Can an employee take FMLA to care for an adult who is not a parent, child or spouse?

It depends.

In December 2024, the Sixth Circuit Court of Appeals provided some clarity in determining if an “in loco parentis” relationship is present under the Family and Medical Leave Act. (Chapman v. Brentlinger Enterprises, No. 2:20-cv-05009, Dec. 13, 2024) The Sixth Circuit covers Ohio, Michigan, Kentucky and Tennessee.

At issue was an employee needing to care for her adult sister, who was unable to care for herself. The employee provided financial support, caregiving, and emotional support.

In the Court’s analysis, it looked at several factors in determining whether an in loco parentis relationship existed, including:

1. Close physical proximity. Did the employee and her adult relative live together or near each other?

2. Responsibility for support. Are you assisting with medical expenses, daily living expenses.

3. Control and rights. Who is making the medical care decisions, has power or attorney?

4. Emotional or familial bond. The Court looked at whether the relationship was similar to parent and child.

Additionally, the Court noted that an in loco parentis relationship is not limited to childhood, but could develop in adulthood.

Takeaway: Don’t immediately deny a request for FMLA. Review the request in a big picture lens looking at all criteria.

Determining Credibility in Investigations

Determining credibility of witnesses can be one of the most challenging parts of any investigation. Who is more believable? Who is telling the truth? What if we all have our own version of the truth?

As investigators, do we always get it right? Absolutely not.

But it’s important to listen and do your best to obtain data, facts and details.

One method that is helpful in determining credibility is the Hillen Factors, which came out of a 1987 decision. So, let’s review these seven (7) factors.

1. The witness’s opportunity and capacity to observe the event or acts. What is the witness’s personal knowledge of time, place and proximity. Were they actually there or just passing by or maybe had secondhand knowledge?

2. The witness’s character. Did the witness have a history of prior misconduct or a lack of telling the truth?

3. Any prior inconsistent statements by the witness? If so, this behavior can cast doubt on the witness’s version.

4. Was the witness biased in some way? Friendships or relationships between the witness and either the complainant or respondent can sometimes create a bias that the investigator needs to look for.

5. Contradiction of the witness’s statement or inconsistency with other evidence. In other words, does the witness’s version of what happened match video, timecards, etc.? Was the witness actually working that day (timecard) or was the witness working in that department that day (video)?

6. Inherent improbability of the witness’s version - was the witness’s recollection of what occurred make sense or did it sound not possible or outlandish?

7. The witness’s demeanor during the interview. What is their body language and tone telling you? Look at their posture, listen to their tone, are they evading your questions or becoming defensive?

   #investigation #credibility #interview

Tis The Season: Behaving at Holiday Office Parties

Holiday office parties can be fun, exciting, and sometimes fueled with liquid courage. But it’s important to remember they are office events and make sure you stay on Santa's nice list 🎅 and not earning yourself a trip to HR 😵 the following morning.

Below are 5 tips that are good reminders for all of us:

1. The Company holiday party is still a work-related event. Be professional.

2. Show up and engage. While the company holiday party is often voluntary, it also serves as a good opportunity to build work relationships.

3. Drink responsibility. Don't cross boundaries (I can assure you that HR does not want a sexual harassment investigation in December!). Don't drink & drive.

4. Use the FORD method for small talk - Family (kids, sports, hosting during holidays), Occupation (interesting projects, work travel), Recreation (hobbies, vacation, pickleball tips), Dreams (bucket list items, retirement).

5. Use discretion when posting on social media (don't post photos of your drunk colleagues!).

Have a wonderful holiday season and enjoy your company holiday events. But be mindful of that fine line between Santa and HR!

hashtag#holidayparty hashtag#advice hashtag#HR hashtag#companyevents

Preparing for Performance Review Season

As we're nearing the end of the year, now is a good time to prepare for your team's annual performance reviews. Being prepared is the difference between "Oh no, it's that time of the year again" to "This is an opportunity to share our performance in 2025 and level set for 2026."

To help you prepare, use the "TEA" approach - Tasks, Expectations, Accomplishments.

📂 Tasks. Which tasks are you measuring? Does the job description still fit, or does it need updated? Look closely at how much of the employee's job has changed or augmented, especially if you have downsized and the employee has taken on more work. Gather your data and know how to measure the tasks performed. Additionally, is the employee appropriately compensated for the work performed?

📈 Expectations. Know the difference between Meeting Expectations vs. Exceptional Performance. If pay is tied to performance, the distinction matters even more. And remember, "meeting expectations" is the goal and not a bad thing. Too often, we are attached to grades, and we think meeting expectations is the equivalent of a "C" grade. We like to believe we are all exceeding expectations. Be realistic.

📢 Accomplishments. How has the employee contributed to the team during 2025? How did he or she add value? Was there something specific the employee accomplished outside of his or her normal scope of work? It's a good practice to ask for employee input prior to the review, including asking your team members what they are most proud of, which skills did they use to help move the company forward, and is there specific growth/development that would help them in the coming year.

Being prepared makes the difference. It shows your team you care and notice their contribution and commitment. It also offers you a check-in to receive feedback and to set goals (including learning goals) for 2026.

Good luck.

#performance #performancereview #difficultconversations

When to Use an External Investigator

A challenging decision employers will need to make when presented with an employee complaint is deciding whether the complaint should be investigated internally by a manager or HR or externally by an experienced, knowledgeable and neutral investigator.

As you're making this important decision, below are criteria to consider:

1️⃣ Do you have the time and attention to immediately begin an investigation? Most investigations should commence within 1-2 days of receiving the complaint and should conclude within two weeks of receiving the complaint, absent extenuating circumstances.

2️⃣ Do you have the expertise and strong understanding of workplace laws and policies? When it comes to harassment, discrimination, bullying, retaliation, wage and hour disputes, and misconduct, an investigator should have a full understanding of the employment laws that come into play.

3️⃣ Do you have a neutral and objective mindset with no pre-existing relationships or biases to the individuals involved in the complaint? The role of the investigator is not as an advocate for the parties to the complaint, but to be a neutral, unbiased fact finder with the goal of being fair and impartial.

4️⃣ Are you open to identifying the root causes that gave rise to the complaint? An external investigator gathers facts, weighs credibility, and works to find the root cause of the complaint and then makes a recommendation.

We are always happy to have a more personalized conversation about the benefits of using an external investigator.

Three Frustrating Workplace Behaviors

At some point, as a manager or leader, you have encountered one or more of these three frustrating behaviors. How you handle these issues will make the difference in future performance. Additionally, your team is watching you - doing nothing is not an option.

Unexcused absences.

• Does the absence fall under a protected leave, such as FMLA?

• What does your policy state regarding absences? Make sure you follow the policy.

• How often are the absences occurring? Is there a pattern?

• Hold a meeting to discuss the data and get back on track regarding the importance of being at work as scheduled.

Failure to complete work assignments.

• Identify the root cause or reason for not completing assigned work. Is the employee lacking the knowledge, skills or abilities to complete the work on time? Is there a lack of clarity? Or is the employee overwhelmed, distracted or disengaged?

• Set clear expectations regarding work assignments moving forward and be clear on the consequeinces.

• Provide support or feedback as improvement is noticed.

Not being prepared in a meeting.

• Is this repeatedly evidenced or just one time?

• Hold a separate meeting to discuss the lack of preparation. Explain it is unprofessional and disrespectful to his/her team.

• If not being prepared has become a habit, then be prepared to take stronger measures regarding performance deficiencies.

As always, document all conversations and don’t forget to follow up. Good luck!

Addressing an Employee with Attendance Issues

Having a conversation with an employee about attendance or absenteeism is a challenging conversation for most managers.

Research shows that 20% of workers are late to work at least once per week and nearly 1 in 10 workers are off work for an unscheduled absence at any given time. On a good day, it’s not easy to make sure you’re staffed properly.

So what do you do as a manager?

If you notice an employee is struggling with his/her attendance, follow these 5 steps to get them back on track:

1. Gather data. When were they late or absent? How much notice did they provide? Has a pattern of absenteeism developed?

2. Hold a meeting with the employee. Make sure you hold this meeting in a private location, being mindful that this conversation may be sensitive or confidential.

3. Listen to what the employee is telling you. Is this a short-term issue, such as child care scheduling or car problems or possibly a series of medical appointments or is the employee defensive and making excuses.

4. Explain the impact on the department or company. Absenteeism causes a decrease in productivity, loss of revenue, increase in customer complaints, decrease in morale, increase in overtime costs, and can cause employee fatigue for coworkers who are having to work harder due to the unscheduled absences.

5. Set expectations. Be clear when setting expectations. Will continued absenteeism result in discipline. Is immediate improvement expected or the individual will be let go? If an accommodation is being provided, has it been outlined clearly in writing and properly provided?

Absenteeism is challenging for managers because you often hope it will get better on its own. But it requires your direct attention and also requires regular check-ins to ensure improvement has been made.

And of course, don’t forget to document all actions or conversations.

Insubordination vs. Inappropriate Behavior

Your employee yelled at you, told you this project is BS, and doesn’t seem to be doing his job. As the manager, you’re upset and you think they’re not doing what you told them to do and you’re ready to write them up for insubordination.

But is it insubordination? Or could it be something else, like a performance issue or disrespectful or unprofessional behavior?

Insubordination is a willful refusal to follow a direct order. Let that sink it. It is a willful refusal, not to be confused with simply disagreeing or being slow to perform or being upset by the assignment.

Let’s break this down.

Insubordination has three key elements:

1. You are their manager and have the right to give an order to perform.

2. You have given a clear, reasonable and legally acceptable order to engage in a task.

3. The employee has refused to engage in the requested action or order. You explain in a calm, measured tone to the employee that he/she has refused to engage in a direct and reasonable order and ask that they understand that failure to do so will result in insubordination.

Bonus points if you state again to the employee to make sure they fully understand that they have failed to engage in the direct and reasonable order and they will be disciplined, up to and including termination, for insubordination.

Lastly, if you are faced with this scenario, be calm (as much as you can). Do not argue. Do not engage in any retaliation. And always document immediately after this has occurred.