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Probationary Period

Is it ok to have an employee under Probationary Period if this employee has worked for you more than 90 days?

Yes, probationary periods are established by the employer. Employees are often placed on probation for a specified time period upon hire or transfer to a new position, or when an employee’s performance is subpar. The purpose of the probationary period is to allow a specified amount of time for the employer to evaluate the employee’s ability to perform his/her job duties. During this time coaching/training is often provided.

Employers are able to use probationary periods as they deem suitable. It’s best to clearly explain the duration and purpose of the probationary period to employees. It’s important they know what you expect from them during this time and what can happen if those expectations are not met.


September 18th, 2018, 3:20 PM |  Posted in: Human Resources Management |
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Counting Employees for FMLA

We are a small company of 42, and we have a UK branch of 12. Together the numbers fall within FMLA range, however the 50 to 75 mile clause makes this null and void for FMLA. My question is do temps and contractors count as employees since they are currently working for and being paid by the company?

A covered employer under the federal Family & Medical Leave Act (FMLA) is one who employs 50 or more employees within a 75-mile radius of the worksite.

For the purpose of determining an employer’s eligibility to comply with the FMLA, only employees, not contractors, need be counted. It’s important to make certain independent contractors are appropriately classified as such as to not miscount the number of employees.

In regards to temporary employees, if the temporary employees are in fact employed by you, meaning they receive a W2 from you, and their employment status is active, then they must be included in the employee count. Part time employees as long as they are on the payroll are considered employed and must be counted.

The gray area is with temporary employees who work for you but are provided by a third party agency. In this case, these employees need only be counted if a joint employment relationship exists. Joint employer coverage is when both employers exercise control over the employee’s work duties and conditions. Joint employers must both count the temporary employee for the purpose of determining whether an employer is covered under the FMLA. But, only the primary employer (the temp agency) is responsible for providing the required FMLA notices and administering FMLA leave.

Further, the FMLA applies to employees who are employed within any state of the U.S., the District of Columbia or any territory or possession of the U.S.


September 18th, 2018, 3:10 PM |  Posted in: Labor Laws |
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Terminating Employee

Do to income restrictions we had to terminate a salary role in the company, as the only salary person refused to take on patients and work only 9-4 and we had to hire help per visit nurses to cover this role. After a two years of doing this, it was apparent this salary employee was not stepping up and we were paying for 3 nurses to cover what one salary nurse can do. We are a small company and decided to remove the salary role. We brought said employee in to tell her we are terminating this position and she stood up and walked out, without hearing the rest or the option of a prn position. She refused to sign the letter. Question is, letter date was specific, and she would have had mileage. We of course will pay out salary to that day, but she did not turn in mileage that day. Will we have to pay that if she submits it after the walk out and not signing the letter?

The employee should receive any and all money that is due to her. So, if she would normally be eligible for mileage reimbursement then it should be paid to her.

It’s best to contact the employee and let her know that she is eligible for mileage reimbursement if she submits the appropriate paperwork. If she doesn’t respond to you and you’re unable to payout the appropriate amount then there is no need to do so. Document your attempt to contact her.


September 18th, 2018, 1:30 PM |  Posted in: Compensation |
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PTO Payout upon Separation

If an employee gives his two week’s notice, and has 17 days left of PTO and works the two weeks, is the employer required to pay the 17 days of PTO?

There is no federal mandate for private employers to payout accrued unused paid time off. However, some states have adopted legislation on the matter. Of those states, most simply require employers to adhere to their own established policies and practices. Some states, however, go one step further and consider earned paid time off, usually only vacation time, to be considered earned wages. Meaning, any accrued unused vacation time must be paid out to employees upon separation of employment.

Feel free to post a comment with the specific state in question and we can research any applicable laws.

September 18th, 2018, 1:15 PM |  Posted in: Benefits |
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Exempt or Non Exempt

I have worked in HR for the past 7 years. I am in charge of all of the FMLA/process, training, Unemployment, benefit enrollment, Medical Orders of Support, and some recruiting. Should I be classified under Exempt or Non Exempt?

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.

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.

It’s up to employers to determine an employee’s classification based on FLSA guidelines.

To be exempt, an employee must pass all three “tests”, salary level, salary basis, and duties, as outlined by the FLSA.

The salary level test: Employees who are paid less than $455 per week are non-exempt.

The salary basis test: An exempt employee must receive a regular, predetermined amount of compensation each pay period on a weekly, or less frequent, basis. Aside from a few exceptions, an employee must receive the full salary for any workweek during which the employee performs any work, regardless of the number of days or hours worked.

The duties test: An employee who meets the salary level and salary basis tests is exempt only if he/she also performs exempt job duties. The actual tasks of the job are to be evaluated, not the job title. Exempt employees are employed as bona fide executive, administrative, professional and outside sales employees.

Job duties are exempt “executive” job duties if the employee regularly supervises two or more other employees, has management as the primary duty of the position, and has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

“Professionally” exempt work is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Advanced degrees are the most common measure of this but are not absolutely necessary if an employee has attained a similar level of advanced education through other means and performs essentially the same kind of work as similar employees who do have advanced degrees.

Further, the creative professional employee exemption applies to an employee whose primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

“Administratively” exempt employees provide support to the operational or production employees and have a major impact on the overall business. An administratively exempt employee has the authority to create or interpret company policies, has responsibilities that directly relate to the overall business operation, has the decision making ability to make significant financial impacts, and has the authority to deviate from company policy without prior approval.

An employee who doesn’t pass all three tests is considered non-exempt under the FLSA.

Whether a HR Professional meets the criteria for exempt status cannot be determined by a few duties, rather all of the employee’s job duties and the qualifications needed to perform the job must be considered.


September 18th, 2018, 12:41 PM |  Posted in: Compensation |
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