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Non-exempt Benefits

Hello – In our Church we have salaried and hourly non-exempt employees. i.e. our musicians are salaried but non-exempt since they do not meet the salary requirement. With that said, if the Church decides to offer vacation, sick time, etc to the salaried non-exempt, do we have to offer to the hourly non-exempt? Thanks, Jeff

Hi Jeff,

The application of paid time off benefits may differ amongst employees for employment based classifications such as full time or part time, exempt or non-exempt, length of service, or job group. The criteria must be nondiscriminatory. Decisions cannot be based on protected characteristics such as race, color, national origin, religion, gender, disability, age (if the employee is at least 40 years old), and citizenship status. If an employer chooses to offer paid time off or administer a paid time off policy differently to a select group of employees, the employer must consider if the criteria creates an adverse impact on protected groups or unintentional discrimination.

It’s more common to distinguish employees based on exempt or non-exempt classification than it is to use salary or hourly paid. Using the payment criteria itself is lawful; however, you must ensure that the criteria is clear, uniformly applied and doesn’t create unintentional discrimination.

November 19th, 2014, 12:54 PM |  Posted in: Benefits, Human Resources Management |
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Employee Handbook

Is there an Arizona law that the employer must provide employees a handbook to read and sign to verify company policies?

Though there are federal, state and municipal labor laws that require certain postings or policies/procedures, there is neither federal nor Arizona state law that requires an employer to provide an employee handbook or requires employees to acknowledge receipt of company policies by signature.

It’s recommended for any employer, big or small, to have an employee handbook. Laws require employer actions such as minimum wage, overtime provisions, breaks, and leaves of absence. Other actions are determined by the employer such as work schedules, paid time off, and disciplinary procedures. Employee handbooks provide a central location for both legally and employer mandated policies and procedures.

Since employee handbooks are an integral part of the employment process, many employers opt to require employees to sign an acknowledgment form whenever a handbook is distributed and whenever a policy/procedure is updated. The purpose of the form is not only to confirm that the employee received the document but also to ensure the employee is aware and responsible for the information provided in the document. Signed acknowledgement forms often prove beneficial in disciplinary actions and legal disputes.

November 18th, 2014, 1:12 PM |  Posted in: Human Resources Management |
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In the State of Florida, if an employee chooses to take phone calls and send out emails after she goes home and/or at weekends, is the employee entitled to overtime?

The federal Fair Labor Standards Act (FLSA) establishes overtime provisions. Under the FLSA, employers are required to pay employees, unless exempt, overtime pay of one and one-half times their regular rate of pay for hours worked over 40 in a work week.

A non-exempt employee must be paid for each and every hour worked, even if the time worked is not requested or approved by management. So, an employee who chooses to perform job duties after his regularly scheduled hours must be paid for the time worked. Any compensable time is counted towards overtime each work week.

Employers are within their rights to prohibit non-exempt employees from working after hours without prior authorization and impose disciplinary sanctions for violating such policy.


One Employee, Two Jobs

I have a server that clocks in as a server; however, the last two hours she is a manager on duty. Is it legal to have one paycheck for serving and a separate paycheck with manager hours on it as long as both are taxed?

The real issue is the adherence to the federal Fair Labor Standards Act (FLSA). The FLSA applies to most public and private employers and sets forth standards for minimum wage and overtime pay. The act requires employers to pay covered employees, unless exempt, overtime pay of one and one-half times their regular rate of pay for hours worked over 40 in a work week. To be exempt an employee must pass all three “tests” as described by the FLSA, salary level, salary basis, and duties. Though classification is based on duties performed not job title, most servers are non-exempt; whereas, most managers are exempt.

Under the FLSA, a worker can only have one classification, exempt or non-exempt. The classification is based on the worker’s primary job duties but when a worker has two jobs within the same company the primary duties are actually a combination of both jobs. In this situation, since the employee is working most of her hours as a server, her classification for both positions must be non-exempt.

Thus, her hours worked as a manager must be compensated per hour worked and contribute towards the calculation of overtime.
In terms of the paycheck, it’s better practice to issue one paycheck which details the number of hours paid as a server and the number of hours paid as a manager. Doing so provides a clear explanation of the compensation for each pay period. Also, since overtime must be accounted for, it’s best to have all compensable hours worked on one paycheck.


Maternity Leave extension

Hi, We are a small business in Florida with 9 employees. One employee is currently out on maternity leave. Her 3 months will be up soon. I have reached out to her multiple times asking her when she will return with no response. I finally received an answer just this week. Since I stated that her leave was coming to a close, she is now telling us that she will need additional time off. And when she comes back she would like to work part time for a few months. How should this be handled ?

Florida doesn’t have any leave entitlement laws that apply in this situation and the federal Family and Medical Leave Act (FMLA) only applies to employers with at least 50 employees.

A small business not covered under leave entitlement laws is able to establish its own policies on leave of absences. Granting the employee three months of maternity leave was generous and shows your commitment to your employees. Whether the employee is entitled to additional leave time depends on the reason for the extension; specifically if the extension is due to a disability as defined by the Americans with Disabilities Act (ADA).

If the employee is in need of an extended leave for baby bonding or to find childcare, then the ADA doesn’t apply. In this case, it’s up to you, as the employer, to approve/deny the additional time off. In making the decision, consider the leave time offered to other employees in similar situations, the impact additional time off will have on business operations and the precedent it will set for future employees.

If the employee is requesting the leave due to a medical condition than it’s important to ascertain if the condition is covered under the ADA as a disability. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities or a person who has a history or record of such an impairment. For an impairment to be a legal disability, it must be long term.

For example, gestational diabetes may continue after the birth of the baby and, if the above criteria are met, may be considered a disability under the ADA. If so, the employer is required to consider reasonable accommodations, such as time away from work. Employers aren’t required to provide an accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources. In this situation, an employer could argue that a three month leave has already been provided and any additional leave would significantly disrupt the operation of the business. This may be a far-fetched example but it’s important to be aware of the legalities involved before denying the leave extension.

Whichever option you choose, it’s important to clearly communicate the decision with the employee. Remember to document your reason for the decision and any communications with the employee.

November 12th, 2014, 3:26 PM |  Posted in: Benefits, Human Resources Management, Labor Laws |
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