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Pay During Storm

Is an employer required to pay employees that cannot go to work because the state puts a ban on driving during a storm?

Driving bans were implemented in several states over the last few days in an effort to ensure the safety of individuals during a storm.

There is no requirement for employers to pay non-exempt employees for hours not worked during this time. Under the Fair Labor Standards Act (FLSA), non-exempt employees must only be paid for actual time worked.

Employers may consider paying non-exempt employees for the time off since their absence from work is really not their fault. The generous gesture shows the employers commitment to employee safety.

Exempt employees generally must receive their full predetermined salary for any week during which work is performed. If an employer is closed for less than a full workweek, for example a single day due to a storm, then there should be no deductions from the exempt employee’s pay. If the exempt employee is willing and able to work, an employer cannot take deductions from his or her pay when work is not available. Doing so would violate the salary basis requirement of the FLSA. Per FLSA regulations an employee is not considered on a salary basis if deductions from his/her predetermined compensation are made for absences occasioned by the employer.

However, if an employer is open for business and the exempt employee chooses to take the time off, the employer may make a deduction from the exempt employee’s salary for the full day of worked missed.

Also, employers may require their employees, including exempt ones, to use accrued vacation time or other paid time off to cover the time missed from work.

Employers should adopt an inclement weather policy that addresses how employee pay will be managed during adverse weather conditions that affect the workplace.

January 29th, 2015, 3:06 PM |  Posted in: Attendance Management, Compensation, Labor Laws |
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Calling Employee Who is on Leave

We have a manager that wants to contact their employee about returning back to work. There are other employee’s within the department that plan on going out on leave based upon her return to work. Can our manager call his employee to find out when they are returning back to work? If so, what happens if the employee starts talking about PHI?

It’s completely acceptable to call an employee who is on leave to discuss when she expects to return to work. Some companies even require employees on leave to “check in” with their managers each week. As long as this practice is done uniformly with all employees, it’s permissible. It’s important to not to harass the employee or make aggressive comments implying that she must return to work sooner than her protected leave, if applicable, entitles just to accommodate other staff.

The employee may provide details about her medical condition during the conversation, especially if she feels the need to explain why she cannot return to work immediately. It’s then up to the manager to redirect the conversation and only discuss her return to work date. The manager can even be assertive in saying that he prefers not to know the details of her medical condition.

The manager/HR should document the date of the call and what was discussed.


Firing Disabled Employee

One of our employees was recently injured in an auto accident outside work. He will be out with fractures for some time. We were just getting ready to let him go for non performance. Where do we stand now. Can we still let him go or should we wait until he wants to return?

Many employers would be hesitant to terminate an employee who is temporarily unable to work due to a medical condition. Rightly so, there are a few legal implications.

The federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons. The FMLA, generally, applies to employers with 50 or more employees.

If the employee is covered under the FMLA (or similar state leave law), in most cases terminating him would be a violation of his rights to a medical leave. However, if you have very clear, without a doubt evidence to substantiate poor performance prior to the employee’s accident, termination may be permissible.

Keep in mind that you must be willing and able to prove your case, including why you didn’t terminate the employee sooner, in court. Many employers would rather allow the employee to take protected leave and manage the performance issues upon his return instead of risking a lawsuit.

Also, the federal Americans with Disabilities Act (ADA) prohibits discrimination against an individual who can perform the essential functions of his job with or without reasonable accommodation. The ADA covers employment by private employers with 15 or more employees.

Under the ADA, disability is defined as a physical or mental impairment that substantially limits a major life activity. Usually a broken bone is not considered a covered disability; however, without knowing the extent of the employee’s injuries, the ADA is worth mentioning.

Though the ADA doesn’t explicitly entitle employees to time away from work, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. Depending upon the circumstances, time off from work may be considered a reasonable accommodation. Employers aren’t required to provide a reasonable accommodation that would impose an undue hardship on the operation of the business, like a never ending leave of absence. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources.

So, assuming the employee’s medical condition is considered a protected disability under the ADA, consider if you’re able to provide a short unpaid leave. If you can, set a timeframe for the leave including a specific date that the employee must return to work or be terminated.

Just like with the FMLA, termination may be acceptable if the reason can be clearly proven as poor performance and completely unrelated to the employee’s current medical condition. Remember, you may have to back up your reasoning in court one day.

Moreover, whether the employee’s condition is covered under the ADA or not, any past practice of offering leaves to other similarly situated employees must be considered in this situation. Meaning, if a previous employee with a similar condition was awarded a 3 week leave, the same benefit should be offered to this employee.

It may seem burdensome to take these additional steps even when you feel you have evidence to substantiate a termination now. However, precautionary measures will reduce the chance of the employee filing a wrongful termination suit.

January 29th, 2015, 12:58 PM |  Posted in: Labor Laws, Termination |
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Employer’s Unemployment Burden

What is the burden that a company sees when a terminated employee applies for, and receives, unemployment insurance? It appears that my company avoids terminating employees and rather tries for resignations instead; I wonder why.

Unemployment insurance programs are administered by each state’s Department of Labor with guidelines established by federal law. Eligibility for unemployment benefits varies by state. In general, unemployment insurance provides unemployment benefits to workers who are unemployed through no fault of their own. Involuntary separation can be interpreted differently based on whether the employee was laid off, resigned, or was fired.

An employee who was laid off or part of a reduction in the workforce will be eligible for unemployment.

It’s commonly thought that an employee who resigned will not qualify for unemployment. However, a worker who resigned for good cause, meaning continuing employment would actually have been an increased hardship, may receive unemployment. For example, an employee who resigned to avoid continued harassment or unsafe work conditions would normally receive unemployment benefits. Conversely, an employee who resigned because he didn’t get a raise or wasn’t happy with the work his was doing would normally not receive unemployment.

Any employee can file for unemployment benefits even ones who were terminated. A terminated employee may receive unemployment if he was fired for minor or unintentional violations such as poor judgment or tardiness. Major misconduct such as harassment or stealing will generally render a worker ineligible for unemployment.

The more unemployment claims against an employer will often increase the employer’s unemployment insurance rates. Employers pay for unemployment insurance not employees. Each claim has the potential to financially impact the employer. The size of the company, type of workers claiming, length of employment, and amount of benefits awarded all affect just how much financial impact an employer will endure.


January 28th, 2015, 1:50 PM |  Posted in: Human Resources Management |
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Mandating Employees to Stay at Work

During a storm, we require our CNA’s to stay at work after their shift has ended. Are we required to pay them? The CNA shift is 3p.m.-11 p.m. We are mandating them because we do not know if the 1st shift the next day will come to work. So, we want them to stay at work from 11 p.m. until 7 a.m. and not pay them. Can we do this? We are in Connecticut.

The Connecticut Department of Labor defines “hours worked” in the following manner:

(a) “Hours worked” include all time during which an employee is required by the employer to be on the employer’s premises or to be on duty, or to be at the prescribed work place, and all time during which an employee is employed or permitted to work, whether or not required to do so, provided time allowed for meals shall be excluded unless the employee is required or permitted to work. Such time includes, but shall not be limited to, the time when an employee is required to wait on the premises while no work is provided by the employer. Working time in every instance shall be computed to the nearest unit of 15 minutes.

(b) All time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time and shall be paid for as such, whether or not the employee is actually called upon to work.

(c) When an employee is subject to call for emergency service but is not required to be at a location designated by the employer but is simply required to keep the employer informed as to the location at which he may be contacted, or when an employee is not specifically required by his employer to be subject to call but is contacted by his employer or on the employer’s authorization directly or indirectly and assigned to duty, working time shall begin when the employee is notified of his assignment and shall end when the employee has completed his assignment.

So, all time that the CNAs are required to be onsite is compensable time under Connecticut law.

January 28th, 2015, 1:34 PM |  Posted in: Compensation, Labor Laws |
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