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FMLA and Overtime

Can an employer deny an employee the opportunity to volunteer for overtime because that employee has intermittent Family Leave?

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave in a defined 12-month period for certain family and medical reasons. FMLA leave can be taken in one continuous block or on an intermittent or reduced schedule basis.

Employees on FMLA leave cannot be retaliated against in any manner. Basically, an employee on FMLA leave shouldn’t be treated differently than any other employee. So, forbidding an employee from volunteering for overtime solely because he is on intermittent FMLA leave may be considered retaliation.

However, if the need for FMLA leave causes the employee to not be able to work overtime (i.e. the employee can’t work more than 8 hours in day or the employee can’t work at night etc…), then the employer should prevent the employee from volunteering for overtime in accordance with the medical certification/physician’s recommendations.

Also, if the employee in question would be denied the opportunity for overtime for some other reason (i.e. as a disciplinary action) then doing so even when the employee is on intermittent FMLA leave is permissible. The key here is to ensure the employee is treated in the same manner as if he wasn’t on FMLA leave.


January 16th, 2018, 2:59 PM |  Posted in: Labor Laws |
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Performance Improvement Plan

We have an employee who is not performing at standards. We were planning on putting her on a performance improvement plan but days before we did she informed us she is pregnant. Can putting her on the performance improvement plan be considered retaliatory since we just found out she is pregnant? Would she have any legal claim regarding this? Our other option would be to move her from her current position to a different open position in the company but we prefer to not do that if possible.

As long as the employee’s poor performance was clearly documented prior to the employee disclosing her pregnancy then retaliation shouldn’t be an issue. Basically, if an outside person were to look at the employee’s record could it be reasonably assessed that the employee was having performance issues that were addressed in a timely manner in accordance with company policy and/or past practice? If so, then retaliation shouldn’t be an issue since it’s clear that she wasn’t disciplined due to her pregnancy. But, if the performance concerns weren’t documented and she was given a PIP or some form of disciplinary action after she disclosed her pregnancy then whether your actions were retaliatory or not would be questionable.

Anyone can claim retaliation. Whether she has a legal basis for doing so depends on how you handled the situation in its entirety. Was the employee aware of her poor performance prior to disclosing her pregnancy? Was she counseled in any matter, even a simple verbal reminder? Did she understand the expectations of the job, specifically the duties she didn’t perform well or the goals she didn’t meet? Or, did the employee think she was doing a good job and was only made aware of her performance problems after she disclosed her pregnancy? If this is the case, then the employee may truly believe that she is being retaliated against for being pregnant. Even if you had good reason to wait to disclose the performance problems and the employee coincidentally disclosed her pregnancy, the mere perception of retaliation can be problematic.

Your ability to prove her poor performance caused her to receive a PIP not her pregnancy is crucial in defending yourself against a retaliation claim. It doesn’t sound like you’re at that point just yet. So, consider what you can do now to prevent the perception of retaliation.

Review the PIP. Are the issues clear violations or legitimate concerns that would be addressed with any other employee in the same manner? Remember, a well devised PIP should document the specific performance issues (i.e. description of issue, relevant dates) and include an action plan for improvement. Make sure the action plan is specific, related and attainable.

When meeting with the employee discuss the issues and the proposed action plan. Solicit her input and make any edits to the plan as necessary. Ensure the action plan is a collaborative effort and express that you’re willing to work with her to devise the best plan for her improvement. This will encourage her ownership in the issues and reduce the likelihood of her feeling that your discriminating against her. A good faith attempt to help the employee achieve performance goals goes a long way in preventing a discrimination claim.

Remember to treat this employee in the same manner you would treat any other employee. You may have to adjust a few duties here and there to accommodate her but in general the goal is to be fair.


January 12th, 2018, 1:38 PM |  Posted in: Workplace Management |
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Pay During Inclement Weather

If there is inclement weather are we required to pay employees who were scheduled to work but didn’t come in due to the weather?

The federal Fair Labor Standards Act (FLSA) establishes compensation regulations affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, employees are either non-exempt or exempt.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements. Non-exempt employees need not be paid for time not actually worked. So, if a company is closed due to inclement weather or an employee chooses not to report to work due to inclement weather then there is no requirement to provide compensation to a non-exempt employee.

Conversely, exempt employees receive a fixed predetermined salary for any workweek during which work is performed. 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 due to inclement weather would be an absence “occasioned by the employer.” Thus, an employer cannot deduct the day from an exempt employee’s salary. However, if the business is open and an exempt employee chooses not to report to work then a full day deduction for the absence is permitted as long as absolutely no work is performed by the employee that day.

Non-exempt and exempt employees can be allowed or required to use their PTO accruals during inclement weather. This is generally up to the employer to decide and any policies regarding such should be communicated to employees in advance.

Also, some states have adopted laws regarding paying employees during inclement weather. So, it’s best to be aware of any applicable laws in your state.


January 12th, 2018, 10:59 AM |  Posted in: Compensation |
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Non-Exempt Salary Pay Deduction

Do these laws vary by city/state? Specifically- in NYC, can a non-exempt salaried employee be docked pay for missed days or lunch breaks? They are salaried so they earn vacation and sick time. What situations would the employer be allowed to deduct pay?

Some states and municipalities have adopted their own wage and hour laws. Still, employers in those states are required to adhere to the federal Fair Labor Standards Act (FLSA) at minimum. Most state wage and hour laws including NY mirror the FLSA while adding protections against unauthorized wage deductions.

Under the FLSA, employees are either non-exempt or exempt. Salaried and hourly 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.

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.

Though uncommon, a non-exempt employee can be paid a salaried, like in this case. A non-exempt salaried employee is considered non-exempt and must be treated as such for all provisions of the FLSA and NYS wage and hour laws. This includes being paid for every hour worked and receiving overtime wages for any hours worked over 40 in a given week. Of course, the salary must equate to at least minimum wage for each hour worked.

Non-exempt employees, whether they receive a salary or are paid on an hourly basis, need only be paid for time actually worked. Any time not actually worked like a meal period or missed days need not be compensated. Keep in mind the FLSA prohibits wage deductions for short breaks lasting 20 minutes or less and for meal periods during which employees must perform work duties.

Paying a non-exempt employee a salary instead of on an hourly basis is in an effort to ease payroll administration. Paying a fixed salary each week is easier than calculating pay for each hour worked. Such a setup is most beneficial for employees who rarely deviate from their scheduled hours.

Deducting from a non-exempt salaried employee’s wages for minimal time missed from work (i.e. leaving work an hour early or arriving 30 minutes late) is permissible but defeats the purpose of paying on a salaried basis and may create more of an administrative burden then if the employee was just paid on an hourly basis. However, deductions for full day absences is common.


January 12th, 2018, 10:52 AM |  Posted in: Compensation |
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Conflict of Interest

We receive tons of mail on a daily basis in our garnishment department to garnish employees’ wages. Can the same person who opens, sorts the mail & identify the mail be the same person who processes the garnishment paperwork?

The same person is responsible for sorting the mail for the department and processing garnishment notices. That doesn’t appear to be a conflict of interest. It’s common for one employee to be responsible for opening and sorting mail while also have a range of other responsibilities that may involve sensitive material. For example, an HR Assistant’s duties may include opening and sorting mail and completing verification of wages requests. Both duties privy the employee to sensitive information.

As with any position that involves access to sensitive information, there should be a confidentiality policy in place. This ensures employees are aware which information is considered confidential and the procedures for protecting confidential information.


January 12th, 2018, 10:07 AM |  Posted in: Human Resources Management |
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