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Compensation – Exempt Employee Pay

I have a two fold question. I have an employee who is being accommodated under ADA through the middle of 2015. With this accommodation, the employee will be working 20 hours one week and 32 hours the next week. Also, I am in the middle of reviewing classification statuses for the company. In my review, I have determined that the employee’s role is nonexempt versus exempt. Below are my questions: 1. Can I pay the exempt employee hourly during the accommodation? 2. Should I wait to reclassify the position until the accommodation is completed to avoid the appearance of the company being discriminatory? Any insight would be helpful.

It’s acceptable to change an employee’s classification during an accommodation period as long as the reclassification is not due to the employee’s accommodation which it doesn’t appear to be in this situation. Since the classification of every job in the company is being reviewed, it’s reasonable to review the classification of an employee with an accommodation or an employee on a leave of absence. Make sure the entire review process is clearly documented.

It’s in your best interest to reclassify the employee as non-exempt immediately. Under the Fair Labor Standards Act (FLSA), to qualify for exempt status, employees generally must be paid at least $455 per week on a salary basis. Thus, paying an exempt employee an hourly rate is not permissible. Also, keeping the employee as exempt when you know they should be non-exempt constitutes a willful violation of the FLSA. Keep in mind that wage and hour violations continue to be on the rise. Violators may be responsible for back pay and hefty vines.

October 20th, 2014, 1:36 PM |  Posted in: Compensation |
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HIPAA and Absences

Is it against HIPAA laws to post daily list of absences for everyone at work?

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protects from the unauthorized disclosure of personally identifiable health information that pertains to a consumer of health care services. The privacy rule applies to covered entities such as health plans, health care clearinghouses, and health care providers. Most employers are not covered entities; however, an employer with a health clinic of any kind or one who acts as the intermediary between its employees and health care providers is covered under the law.

Personally identifiable health information is information that specifically identifies an individual. Examples include health care claims, doctor’s notes, enrollment information, premium payments, and reports of injuries or illnesses. A list of absences wouldn’t normally violate the act unless the list included employees’ names and specific reasons for the absences such as chemotherapy or cardiologist visit.

I’m curious as to why an employer would want to post a daily list of employee absences. I would understand if it’s for the purpose of other workers knowing who is out of the office each day. However, posting a list of absent workers in an attempt to call them out or highlight excessive absences is passive aggressive and not the proper way to address an issue with an employee.

October 20th, 2014, 1:36 PM |  Posted in: Human Resources Management, Labor Laws |
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Overtime with Vacation

I have an employee that asked for 2 days vacation, 16hours, and got those days off. She came in on her off days and worked for a total of 48.75 hours, 8.75 overtime. She’s upset that she doesn’t get her vacation. We explained that she is in overtime and adding 16 hours vacation time would make a 64 plus workweek when she is only scheduled for a 40 hour work week. What other way can I explain this to the employee?

It sounds like the employee wants to be paid for her hours worked and vacation time for the same hours. She is asking to double dip. Meaning, she wants to be paid two times for the same hours. Any company would refuse to do this. Explain to her that she cannot be paid two different ways (regular wages and vacation time) for the same hours. Since she didn’t actually take her vacation time she will be paid her normal wages for the time worked. When she chooses to use her vacation time then the appropriate vacation time will be paid.

October 18th, 2014, 8:46 PM |  Posted in: Human Resources Management |
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Smoke Breaks

When you have less than 20 employees and you hire a new employee that want to take a smoke break. How do you handle it

The federal Fair Labor Standards Act (FLSA), which establishes wage and hour regulations, doesn’t require employers to provide meal or rest breaks. Some states mandate employers to provide employees who work more than five or six hours at least a 30 minute meal period. Only a few states such as California and Colorado require employers to permit employees to take a rest break. Absent state law requiring rest breaks, employers are free to establish their own policies and practices.

Even with less than 20 employees, it’s important to set policies applicable to all employees. Employees may feel it’s unfair that an employee who smokes is permitted more breaks than nonsmokers. Thus, if one employee is allowed an extra break or two doing the day, the same benefit should be offered to all employees. Another option is to stick to the current policy. Assuming breaks are not currently required/allowed, inform the new employee of the policy/practice. Apologize for the inconvenience but be strict in enforcing the policy. If the employee fails to follow company policy then treat the situation as you would any other insubordination.

October 18th, 2014, 8:37 PM |  Posted in: Human Resources Management, Labor Laws |
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Mandatory overtime days

In New York, how many consecutive days can an employer force an employee to work?

There is no federal law that limits the number of hours or days that an employee age 16 older may be required to work. However, several states including NY have adopted legislation requiring employers to provide employees with at least 24 consecutive hours of rest in a calendar week. This law is often referred to as ODRISA, One Day Rest in Seven Act. There are limited exceptions to the law such as certain dairy businesses and seasonal employers in minimally populated areas.

Though there may not be a limit to the number of hours in a day an employee can work in NY, employers must consider the impact of long hours on employee morale, productivity and safety.

October 18th, 2014, 6:38 PM |  Posted in: Labor Laws |
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