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Sep21

90 Day Probation for Exempt Employees

We are in the process of hiring a exempt employee. We would like to attach a 90 day probation period. The 90 day will me meant to see if the employee is the right fit for the position. Is this OK?

Probation periods are permitted for both non-exempt and exempt employees. Just like at-will employment doctrines apply to both non-exempt and exempt employees.

The one main difference in probation periods for exempt employees is how they’re compensated for time off.

Exempt employees must receive their full predetermined salary for any workweek during which work is performed without regard to the quantity or quality of work performed. There are limited exceptions to this rule. Feel free to review our previous posts for more information on allowable deductions.

It’s common for employers to prohibit employees from receiving holiday pay during their probation period. Such a policy is acceptable for non-exempt employees, but not so for exempt employees.

Deductions from an exempt employee’s salary for absences occasioned by the employer violate the salary basis test for exempt status. An employer closing the business to recognize a holiday would be an absence “occasioned by the employer.” Also, an exempt employee’s salary cannot be reduced if the employee is ready, willing, and able to work, but work was not available such as the company being closed for a holiday. Thus, a policy prohibiting exempt employees from receiving holiday pay until the completion of a probationary period is not permitted since it would jeopardize the exempt status of employees.

As a side note, with any probation period make sure there is no implied employment contract. Sometimes employers unknowingly word probation period policies or offer letters in such a manner that imply the employee is guaranteed work until the end of the probation period. To avoid this, you can simply add a statement regarding at-will employment.

HTH!

September 21st, 2016, 8:00 PM |  Posted in: Hiring and Staffing |
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Sep21

Can a third shift employee take FMLA to sleep?

A third shift employee wants to take FMLA for the night before an appointment so they can sleep, would that be covered under FMLA?

The federal Family & Medical Leave Act (FMLA) entitles eligible employees up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including to care for one’s own serious health condition. Leave can be taken in one continuous block or intermittently.

Under the FMLA, serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Generally, FMLA leave is provided for excused absences from work. The FMLA requires employees to make a reasonable effort to schedule medical appointments during their time off, which the employee in question has done. If an appointment is at a time that would prohibit the employee from arriving for their scheduled shift on time, then any missed work time can be considered protected FMLA leave. However, an employee would not be entitled to FMLA leave for missing work due to personal reasons that don’t qualify as covered reasons under the FMLA (i.e. sleeping before an appointment).

Interestingly, cases have shown that FMLA leave can be used for sleep when medically necessary. For example, an employee who was hospitalized all day but was released in time to work the third shift would qualify for FMLA leave. Reason being, although the employee would be technically able to work, he would be in no state to actually do so because of his ailment earlier in the day.

September 21st, 2016, 7:45 PM |  Posted in: Labor Laws |
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Sep21

Employee Worked Through Paid Lunch

Our employee gets 1 hour paid lunch and normally works a 7.5 hour day starting work at 8:30. This employee needs to leave the office for the day at 1:30 so the employee works through the 12:30 to 1:30 lunch time. Should they get paid 5 hours or 6 hours since they worked through their lunch?

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.

The FLSA only requires that non-exempt employees be paid for all hours worked. Anytime not actually worked need not be compensated.

When a non-exempt employee works through their lunch the time must be compensated. In this case the lunch period is already paid. So, the issue is whether an additional hour should be paid to the employee for the lunch break that was not taken.

One could argue that the employee could’ve taken the paid lunch and returned to work for 5 minutes then left and would still be paid only 5 hours. So, shouldn’t the employee be recognized for actually working during the time and be compensated the extra hour for the lunch break not taken. The other option is to pay the employee only for the 5 hours actually worked.

Though either option is acceptable, the latter one is more common. The choice is ultimately up to the employer. Whichever option is selected it’s best to apply it consistently and fairly to all employees.

September 21st, 2016, 7:16 PM |  Posted in: Compensation |
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Sep21

FMLA after Termination Notice

If an employee sustains an injury at work that contributes to her relationship with her new manager “going sideways,” can that employee file for FMLA retroactive to the date of injury after receiving a memo of intent to terminate employment?

The federal Family & Medical Leave Act (FMLA) entitles eligible employees up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including to care for one’s own serious health condition.

Under the FMLA regulations, both employers and employees have notice requirements.

Employers must notify employees of their eligibility status and rights and responsibilities under the FMLA; and notify employees whether a leave is designated as FMLA leave and the amount of time that will count against their FMLA leave entitlement.

Employers are required to provide a written designation notice to an employee within five business days of having enough information to determine whether the leave is FMLA-qualifying.

Employees are expected to provide at least 30 days advanced notice when the need for leave is foreseeable such as for a scheduled surgery.  When extenuating circumstances exist, like emergency medical treatment the employee must provide notice as soon as possible and practical. If the employee does not give timely notice of unforeseeable leave and does not have a reasonable excuse, the employer may delay or deny the FMLA leave.

Since the employee was injured at work then workers’ comp applies. FMLA leave and workers’ comp leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury.

Unfortunately there is no clear answer to your question because there are several factors to be considered.

Most importantly, why was the employee terminated? You state it was due to her relationship with her manager but what is the specific reason? Terminating an employee for filing a workers’ comp claim or asserting her FMLA rights is illegal.

How long after the injury/FMLA qualifying event was the employee terminated?

Let’s say the employee was injured back in July but has been working ever since. She’s been recently terminated for performance issues and is now claiming she should’ve been on leave this whole time and needs FMLA leave retroactively to her injury date. In this case, the employer would be within legal boundaries to uphold the termination (assuming the termination wasn’t based on illegal criteria).

Now, let’s say the reason for the termination is related to the injury/FMLA qualifying event. For example, the employee was injured two weeks ago. She informed her manager that she needed time off to recover but her manager insisted she return to work. The manager didn’t properly designate the time as FMLA so the employee was terminated for not showing to work. In this case, the employee’s termination should be rescinded and FMLA should be designated retroactively.

Another point to consider is the whether the employee would’ve even qualified for FMLA for the injury. Obviously, this depends on the nature of the injury.

HTH!

September 21st, 2016, 6:55 PM |  Posted in: Labor Laws, Termination |
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Sep20

Consecutive Work Days

Can employers in Missouri work employees 16 days straight without providing days off?

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.

The FLSA doesn’t limit the number of hours in a day or days in a week an employee may be permitted or required to work. This goes for exempt or non-exempt employees.

Some states have adopted days of rest laws; however, Missouri is not one of them. According to the Missouri Department of Labor and Industrial Relations, “There is no minimum or maximum number of hours an employee may be scheduled or asked to work.”

Now, this doesn’t mean an employer should require employees to work weeks straight with no days off. Excessive work hours can result in fatigue on the worksite. Depending upon the job, this can mean an increased safety risk both for the employee and his/her co-workers. Thus, employers are encouraged to limit unusual work schedules or extended shifts.

September 20th, 2016, 1:00 PM |  Posted in: Labor Laws |
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