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Feb15

Important things You Should Know…

February 15th, 2019, 3:08 PM |  Posted in: Human Resources Management |
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Feb10

Additional Compensation for Exempt Employee

I have two exempt night shift supervisors, who have designated 12 hours shifts 7p to 7a, which spans 7 days per week. In other words, they do not work on the same days. The supervisors receive 6 weeks of annual vacation. When employee A goes on vacation, employee B has to cover the vacation and work the shift of employee A. Is employee B entitled to compensation for working employee A’s shift?

The federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, employees are classified as either non-exempt or exempt. Hourly and salary paid are compensation terms.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements prescribed by the FLSA. Most employees are considered non-exempt.

A non-exempt employee in this case would absolutely need to be compensated for any and all hours worked.

Conversely, exempt employees receive a fixed predetermined salary for any week during which work is performed regardless of the quantity or quality of such work. Exempt employees are excluded from overtime pay provisions.

An exempt employee is not required to receive additional compensation for extra time worked. But, in this case, the employee is not just working a few extra hours. He’s working an entire additional shift for a full week. It’s simply good business to compensate him for the time. Not paying for the additional shifts will inevitably lead to low morale, resentment, low productivity and eventually high turnover.

It’s permitted to pay an exempt employee additional compensation without violating the exempt status. The additional compensation can be a flat sum or hourly rate.

It’s worth noting that incorrectly classifying an employee as exempt is a costly mistake, especially considering the employee would be entitled to back pay. So, it’s important to make certain the employees in question without a doubt meet the criteria for exempt status.

HTH!

February 10th, 2019, 9:50 PM |  Posted in: Compensation |
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Feb10

ADA Accommodations

We have an employee who is requesting an ADA accommodation of multiple 5-7 minute breaks throughout the day due to panic attacks. These breaks would allow her to regain control and return to her job. Employees currently have two breaks per day. Can we have the employee break those two breaks down into these “mini” breaks, or are we required to accommodate their request? The employees position is working in face to face capacity with the public. We are currently accommodating her need to arrive late, and to whom she contacts when arriving late, calling out, or need to leave early.

The purpose of an accommodation under the ADA is to provide tools to an employee or make changes to an employee’s job that will enable him/her to perform their essential job functions without causing significant hardship or expense to the employer.

The employee’s requested accommodation of multiple short breaks throughout the day can be a part of their normal breaks. Let’s say employees are entitled to two 15-minute breaks. The employee in question can be asked to split each of her regular breaks in half to allow for more frequent breaks. Doing so still accommodates her request of more frequent breaks.

It’s best to have an interactive dialogue with the employee to determine the accommodations that work best for both parties. Confirm with her that dividing her normal break times would accommodate her to take the requested short breaks throughout the workday.

HTH!

February 10th, 2019, 9:32 PM |  Posted in: Labor Laws |
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Feb10

Frequent and Extended Restroom Breaks

I have an employee that has a Doctor’s note stating she can go to the restroom as many times as needed throughout the day and stay as long as needed each time. We are a production factory so we need our people at their machines as much as possible. Can we do anything about this?

Chances are if the employee has a Doctor’s note stating she must be able to use the restroom often and for extended durations of time, she has a medical condition that qualifies as a disability under the federal Americans with Disabilities Act (ADA).

The ADA covers employers with 15 or more employees. Under the ADA, an employee with a qualified disability must be provided reasonable accommodations that will enable him/her to perform essential job functions.

Generally, an individual has a covered disability if he/she has a physical or mental impairment that substantially limits a major life activity. There is no all-inclusive list of covered disabilities. But, again, if the employee’s Doctor is stating she must be able to use the restroom as needed, then she most likely has a medical condition warranting the need.

The ADA doesn’t require employers to make accommodations that would cause them an undue hardship, meaning a significant difficulty or expense. In order to show that allowing the employee to take additional restroom breaks for extended periods of time would pose an undue hardship, you would have to prove that doing so would be too costly and cause significant disruption to business operations.

There are a few factors that are considered when an employer claims undue hardship: the nature and cost of the accommodation, the overall financial resources of the employer, the nature of the business, and the impact of the accommodation on business operations.

Be careful in claiming undue hardship. There are no exact monetary figures that determine whether an employer has faced an undue hardship or not. If the employee were to file a discrimination claim, you have the burden of proving the expense to provide the accommodation (allowing her to use the restroom more often than other employees) would’ve without a doubt incredibly disrupt business operations.

Further, before denying the employee’s accommodation request due to undue hardship, it’s best practice to discuss different options with the employee that may make the accommodation possible. For example, maybe the employee is willing to work a modified schedule or part time hours. Basically, both employer and employee must have an interactive dialogue concerning the employee’s limitations and how to best accommodate the employee to do his/her essential job duties.

If you truly believe that the accommodation would create an undue hardship, it’s advisable to consult with legal counsel prior to taking any adverse action against the employee. Spending the time and money to ensure you have valid reasons for denying the request now will most likely save you from spending more time and money defending yourself against a discrimination lawsuit.

February 10th, 2019, 9:16 PM |  Posted in: Labor Laws |
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Feb03

Retroactive FMLA Designation

FMLA paperwork was received on 1/30/2019. The employee’s Doctor signed the intermittent leave paperwork on 10/05/2018. Can we designate this leave as of 10/5/2018, or can we only go back 15 days from when the paperwork was received?

Employees are required to return the employer’s requested medical certification within 15 calendar days after the employer’s request, absent extenuating circumstances. Assuming the employee in question, was requested to provide the medical certification sometime late September/early October, what was done once the certification wasn’t received? Was there any follow up with the employee? Was he given an extension to provide the paperwork?

Keep in mind, if an employee doesn’t provide the medical certification, FMLA regulations allow for the denial of FMLA coverage until the certification is received. Thus, any absences during such timeframe can be considered unexcused and subject to the employer’s normal disciplinary procedures.

Let’s assume you provide the employee with an extension to submit his certification. He finally does so but only two full months after his doctor completed them. In this case, a retroactive designation is permitted assuming the employee actually took intermittent leave starting 10/5/18.

Be very careful in determining which hours will be counted as FMLA leave time. It’s best to review the dates/times with the employee, get his consent, and then count those hours against his leave entitlement.

Remember, employers must notify employees in writing whether leave will be designated and counted as FMLA leave within five business days after the employer has sufficient information (i.e. medical certification) to determine whether the leave is being taken for an FMLA qualifying reason. Thus, again assuming the leave is qualified for FMLA coverage, it’s best to notify the employee this week of your decision to designate the leave as FMLA and confirm the retroactive designation to 10/5/18. Be sure to document your reason for the retroactive designation and the employee’s consent to do so.

HTH!

February 3rd, 2019, 12:26 PM |  Posted in: Labor Laws |
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