Human Resource Blog

We’re going to assume that you are not in one of the dozen or so states that requires an employer to pay earned vacation at termination.

At this point, you gave 1 week and 2 days notice, and you’re not going to be paid for earned vacation.

If the employer has given vacation pay to other employees who quit with less than 2 weeks’ notice in the past, then you may have ammunition. Not paying you could appear to be discrimination.

You’re in an excellent position to negotiate. It sounds like your boss really wants you to stay on another week. You could offer to work another week if it means you will be paid for your vacation time. If you have 1 week of earned vacation, that would be working 1 week for double your usual rate. (If you have 2 weeks of vacation, that would be working one week for triple your usual rate.) That’s a pretty good deal for both of you, in anybody’s book.

The other option you could offer your boss is that you would work an additional 3 days, if you would also receive your vacation pay.

It’s true that an employee who is on unpaid FMLA leave cannot have his or her insurance cancelled, as long as they pay the premium on time.

The Family and Medical Leave Act permits most workers to take up to 12 weeks of unpaid leave when they have a serious health condition. Continued health insurance coverage is a major provision of that law.

Normally an employee who pays the insurance premium sends it directly to the HR department. In some cases they are instructed to send it to the insurance company. It’s not clear in this case why that wasn’t true.

Employers are not required to notify a worker by certified letter that coverage has been cancelled. However, in some cases the worker must be offered continued coverage under COBRA.

Employees can report violations of the FMLA to the U.S. Department of Labor, since it’s a federal law.

An informal survey shows that 70% of companies offer the same vacation benefits to salaried exempt and hourly workers – although executives at the highest levels, such as CEOs, may receive additional vacation.

And, it is usually accrued the same way. The only exception is, salaried employees normally accrue vacation based on 40 hours per week, even if they actually work 50 or more hours per week. Most payroll software programs will figure this automatically.

According to this interesting article at http://www.salary.com/personal/layoutscripts/psnl_articles.asp?tab=psn&cat=cat011&ser=ser031&part=par088, years with the company has more impact on annual vacation than salaried or hourly status.

Of course, you as an employer are free to set whatever vacation policy you like, as long as it’s consistent. Many employers feel that they expect more of salaried workers, who are under greater stress, and should have more time off.

There is no Florida law that an employer must pay workers for accrued sick time upon termination.

Normally, the old handbook remains in effect until a new handbook is issued.

If you as an employer have a history of paying sick time to terminated workers, then to avoid charges of discrimination, you should continue until a new employee handbook is printed.

An employee is probably not eligible to receive both Social Security disability payments and unemployment compensation in Illinois. IDES is the Illinois Department of Employment Security, or the office that handles unemployment in Illinois.

Under state regulations, a worker must be “able and available for work, and actively looking for work” in order to qualify for unemployment.

Under federal regulations, a former employee must be significantly disabled to qualify for Social Security disability benefits. Usually this means unable to work.

According to the IDES handbook for workers “For each work day you are sick or otherwise unable to work, your benefit payment for that week will be reduced by one-fifth of your weekly benefit amount. If you are unable to work for five work days in a week, you will not receive any benefits for that week. If you become ill for an indefinite period, notify your local IDES office as soon as you are able to work.”

There could conceivably be exceptions, but usually an employee cannot be both unable to work and able to work at the same time.

At the very least, the employee would have to report his Social Security disability income to IDES. At the worst, this would be fraud and the employee would be subject to criminal charges. He would likely have to pay back any unemployment benefits that he received.

If you are the employer, the best bet would be to appeal the unemployment decision, or to report this employee to the IDES 888-337-7234 .

California has no law that employers must pay workers for jury service, according to the California Court’s website. Since your company chooses to do so, you may establish any policy that you like regarding that payment.  

The majority of California jurors serve just one day. They are then exempt from jury duty for at least 12 months.  However, setting a limit on jury duty limits the employer’s liability if an employee is involved in a trial that lasts for months, like the OJ Simpson trial did.    Setting a limit of 10 paid jury service days in 3 years sounds more than fair.  

The state says, “Length of Service: California has one-day or one-trial jury service (PDF, 68 KB). This means that people are not required to come to court for more than one day or serve on a trial more than once every 12 months. Typically if you are not chosen for jury selection after one day at the courthouse then your service is done for at least one year. If you are selected to serve on a jury, after the trial is over your service is also completed for at least a year and often longer. In fact, the majority of people who report for jury service serve for just one day.”The booklet adds, perhaps optimistically, “The vast majority of people who actually serve on a jury find it a fascinating and rewarding experience that they would do again.”

There are a few states, such as Colorado, that require employers to pay jurors — but California is not one of them.

Thank you for asking such a great question!! This is a situation that many employers are faced with. You don’t want to alienate these employees or lose them, but you do need for them to come to work on time.

Sometimes employees whose performance is excellent in one area make the mistake of thinking they can do whatever they want to, in other areas. Unfortunately, this problem has a way of getting worse, instead of better.

One of the best techniques to address this problem (or almost any performance problem) is called Interactive Management. There are other techniques that use similar tactics.

The actual purpose of writing an employee up, or any other disciplinary action, is to improve the employee’s performance. Used effectively, this should make the worker a better employee.

The employer should speak with each employee one-on-one in a closed office or other private setting, where the conversation cannot be overheard. Don’t be tempted to talk to all three workers at the same time – it will actually make the conversation less effective.

1) Use the “sandwich technique” of beginning and ending with positive comments. Tell the employee specifically how they excel, and that you value their contributions. Remember that a comment that sounds like flattery and lavish praise to you, probably sounds about right to the person on the receiving end!

2) Approach this conversation with the mindset that “there’s just one little problem we have to overcome…” If you and the employee work together to solve the problem, you’ll probably be successful.

3) Remember to ask open-ended questions, because there are two sides to every story.

Employer: “Maria, your performance is excellent and we just couldn’t ask for someone to do a better job than you do when you’re here. But there is one little problem I need your help with. I noticed that you’ve been coming in late almost every day… can you give me some insight into that?”

There may be a legitimate reason for the tardiness. For example, the employees may take public transportation, and the bus may not arrive until 9:15. Arriving before 9:00 am could mean leaving the house 2 hours earlier to catch a different bus, in some cases!

In some cases, after hearing the employee’s side of the story, it’s more appropriate for the employer to take action, rather than the employee. In this case, you might decide to put these three employees on the schedule to arrive by 9:30 am, while other employees arrive by 9:00 am.

4) It helps to quantify the problem, and set reasonable standards.

Maybe the employee is thinking that being only 15 minutes late doesn’t count, or that as long as she calls to say she’s running late, it doesn’t matter.

Be clear about your expectations. You might tell her, “Employees who arrive at 9:08 or later are tardy. Excessive tardiness is more than once every two weeks. It’s a problem because it sets a bad example for other employees. If everyone did it, who would take care of our early customers?”

5) Let the employee know the consequences of her actions, without threats. “Our guidelines are that if an employee is late more than once in two weeks, I have to give her a verbal warning. If it happens again, she receives a written warning. After three written warnings, she’s terminated. Obviously, I would never want that to happen to you. So, how can we solve this problem?”

Because these are excellent employees, you will probably want to start with a verbal warning, followed by written warnings if necessary.

6) When the two of you arrive at a solution, put it in writing and both sign it. Give the employee a copy that she can refer to.

7) Add the other half of the sandwich by complimenting the employee on a specific task she does exceptionally well. Let her know that you appreciate her efforts, and you’re confident the two of you can work through this little problem.

Also remember to follow through. Set up a time to meet with the employee – perhaps in 2 or 4 weeks – to check on her progress. If she has been coming to work on time, praise her lavishly. (Research shows that positive reinforcement is a more effective way to change behavior than negative reinforcement.)

There’s no point in having this discussion, if you aren’t willing to continue the disciplinary process if the problem continues.  In the worst possible case scenario, you will have to fire the employee who has already been written up several times. (Or, give her a final warning and let her know that next time she will be fired.)

While it’s unpleasant to fire a competent worker, it’s almost guaranteed to cure the other two from being tardy.

The Oregon minimum wage increases each year based on the cost of living. The change is effective on January 1 each year, including 2009.

The increase is announced by the Labor Commissioner by September 30 each year. It is based on the Consumer Price Index, or CPI, for the 12-month period ending in August. So the 2009 increase won’t be announced until September, 2008.

Here’s the memo announcing the increase for 2008 (or see it at: http://www.oregon.gov/BOLI/2008_MinWage_Determ.pdf)

While it’s impossible to know what the 2009 increase will be, it’s not likely to be more than the increase last year, which was 15 cents. The state’s minimum wage is currently $7.95 per hour.

Yes, the employer can probably do this.

Like many states, Kentucky does not require that employers offer benefits like vacation pay, paid holidays, paid sick time or personal time. The state also doesn’t generally limit the restrictions that the employer can set on those benefits, if the employer chooses to offer them.

Employers in Kentucky must inform workers ahead of time if they change the employee’s rate of pay. But, that doesn’t necessarily apply to accrued benefits.

No, this is probably not legal under either Massachusetts or federal law. Under both laws, the employer must pay the employee for all hours worked. That would generally include time spent walking from the time clock to the employee’s work station.

After all, it’s not the employee’s fault the time clock is so far away. If the employer wanted to, he could install a time clock next to each workstation. Workers shouldn’t be penalized for his failure to do so.

Violations could be reported to the Massachusetts Division of Labor and Workforce Development or the Wage and Hour Division of the US Department of Labor.

Not exactly.

Under federal law, a salaried-except employee who does not work at all one day, need not be paid for that day.

Suppose Paul is a salaried exempt manager who has used up all his vacation and personal time. He normally works Monday through Friday. One week, Paul is absent on Wednesday because he’s sick. So Paul works 4 days that week. The employer could legitimately pay Paul 4/5 of his usual salary, without endangering Paul’s status as a salaried exempt employee.

However, if Paul came in on Wednesday and worked, even for one hour, before going home sick, he must be paid for the entire day. Not paying him for the entire day could change his salaried exempt status.

It’s better not to broadcast this policy in the handbook. Perhaps “Salaried employees who miss additional days after their personal and sick leave has been used, may be subject to discipline, or loss of pay.” Or, just don’t address this particular issue at all in the handbook.

In Florida, this is regulated by OSHA, the federal worker safety agency.

OSHA’s CFR 1910.141 address restroom requirements for general industry. There are different requirements in some industries.

Generally, workers should have the option of locking the restroom when its in use. A restroom with a single toilet may have a door that locks from the inside. Where separate stalls are supplied in a larger restroom, the stalls must have doors that latch.

An employer can legally keep restrooms locked when not in use to prevent vandalism or for other reasons. However, when an employee makes a request to use the restroom, that request must be granted promptly.

Generally, an employer can require a worker to put in any amount of overtime – even 100 hours per week or more. An employer can require an employee to work when their shift is over. This is referred to as mandatory overtime.

However, several states have laws that specifically prohibit mandatory overtime for nurses. Usually, the law states that the nurse cannot be forced to work overtime when she thinks it will endanger the patient’s safety.   

Massachusetts is one state that limits mandatory overtime for nurses.

This is a controversial issue since the nursing shortage has resulted in excessive overtime in many areas. For a more specific answer, post a question mentioning your state.

As far as the legality of a nurse without current floor experience giving medications, you would need to check with the licensing board in your state. However, this is probably legal, as long as the nurse’s credentials are up-to-date.

No. Under Arizona law – and that of almost every other state – an employer has to pay the employee for all the time worked. However, the employer does not have to pay the employee for any time that he or she did not work.

In some occupations, including outside sales, it is common for an employer to let the worker go when he or she gives two weeks’ notice. Some companies have the policy that they pay the employee for this time. However, there is no requirement that they do so.

There is no law that requires you as an employer to offer a “grace period” to workers.

In fact, in some occupations it would not be practical to do so. In a factory with 200 employees where the manufacturing line ran from 7 am to 3 pm, a single employee who was 10 minutes late could conceivably hold up the line for everyone. That would delay 199 other employees for 10 minutes. It would also result in the employer paying 199 employees for 10 minutes of idle time – that’s more than 33 hours of lost labor.

When some employers say “Be here at 7 am” they mean “Be here no later than 7:10.” But sometimes the employer means “Be here before 7:01 am.” Some employers do this simply because they think being on time is important. There is no way for new employees to know, except to ask.

This may be a generational difference. Baby boomers were taught that work was like a movie…it started at a certain time. If you don’t arrive on time, you were likely to miss something important. Members of the cell phone generation often think that calling to say you will be late, is the same as being on time.

Often the tardiness policy is in the employee handbook. It’s a good idea to put it in writing, to prevent misunderstandings.

There is no Arizona law that prohibits you as an employer from setting such a policy.

In fact, an estimated 80% of Arizona employers have such a policy. Usually it’s for financial reasons.

Suppose Suzie is paid $500 per week. Suzie’s employer has budgeted payroll for $26,000 this year, for her services. If Suzie works 50 weeks and is paid for 2 weeks’ vacation, it costs the employer $26,000 in salary.

However, if Suzie works 52 weeks this year and is paid “in lieu of” 2 weeks of vacation,  the employer will end up paying her $27,000 in salary. That’s salary for 52 weeks, plus 2 weeks of vacation.

In fact, there is no law that requires any Arizona employer to give paid vacation, sick leave or other benefits to workers, period. So most employees are happy with whatever vacation policy they are offered.

This will depend mostly upon company policy. Check with the HR dept. to see what their policy is.

Because you do not qualify for FMLA, it is entirely possible that you will lose your job when you take unpaid leave.

If the company has granted paid or unpaid leave for other workers with short-term disabilities, who did not qualify for FMLA, then under the PDA or Pregnancy Discrimination Act, you are entitled to the same benefits.

Some companies have the policy of rehiring workers under these circumstances, if they have a job open when you are ready to return to work.

If other employees who were hired after temping had retroactive hire dates to qualify for benefits, you may be the target of discrimination based on pregnancy, which is illegal under federal law.

Pennsylvania doesn’t have a state family leave law.  

The federal Family and Medical Leave Act or FMLA only applies to employers with 50 or more workers within 75 miles. So, it would probably not apply in your case.

When FMLA does apply, it grants workers a total of 12 weeks of unpaid leave in a 12-month period.

Most people would say that an employer in this situation who granted 8 to 12 weeks of unpaid leave, would be doing the fair thing. Legally, you could terminate the employee rather than giving her leave.

You are certainly free to “fill the chair” with a temporary employee while this stylist is on leave. However, if it is your intention to return the stylist to her original job, that should be clear to the new stylist, as well.

Be aware that you are establishing a precedent regarding your company’s maternity leave policy. If you grant leave now, you will probably have to grant similar leave to anyone who becomes pregnant in the future, so take the time to put a fair policy in writing. In particular, you might want to specify that workers must be employed for 12 months before they are eligible for maternity leave.

If your company has granted paid or unpaid leave to workers with any temporary disability in the past, pregnant employees must receive the same benefits, under the federal Pregnancy Discrimination Act.

Yes! It is absolutely illegal to avoid paying overtime by giving “comp time” to employees in business, under the federal Fair Labor Standards Act or FLSA. This law covers any employer who does business across state lines, or those with annual revenue of more than $500,000.

Under the FLSA, employees must be paid 1.5 times their usual hourly rate when they work more than 40 hours in a week. It doesn’t matter if the employer didn’t ask the employee to work overtime – if the employee is permitted to work overtime, they must be paid for it on the regular payday.

Non-profit employers are permitted to grant comp time instead of paying overtime under the FLSA, but only if the employee agrees. The employee must be given 1.5 hours off for each hour of overtime worked.

A number of states also prohibit “comp time” for smaller employers, although a few – like Michigan – permit it.

If you don’t want to pay overtime, it’s best to establish a no-overtime policy, or to give the employee time off during the same payroll week so that he or she only works 40 hours.

This is a toxic work environment and our advice would be to find a different job ASAP. You may be able to request an assignment to another project. If not, you’ll need to look for another job. Excessive stress can cause health problems, so even if you have to take a slight reduction in salary, you are better off working for an employer who is reasonable.

While “Bob” is violating every best practice in the Human Resources field, he’s probably not doing anything illegal. There is no federal or state law that requires supervisors to treat workers with respect, or to be reasonable.

Bob is a premium example of a supervisor who, in HR vernacular, is called an “equal opportunity a**h***.” This is someone who is equally rude and abusive to all types of employees. Sadly, this doesn’t break any law because Bob doesn’t single out any one group for abuse. It’s simply bad management.

Unfortunately, this situation doesn’t meet the legal definition for a hostile work environment. Legally, a hostile work environment must involve illegal discrimination of a protected group.

It’s particularly disheartening that your employer – Company O – doesn’t support you and the other employees. This type of over-reaction is common in contractor situations, but the management of Company O should be able to defuse it. It’s a company’s role to set reasonable limits for clients. This is a factor in almost any field.

While you are looking for another job, remain calm and deal with Bob the best you can. His behavior is motivated by fear. He’s afraid that if one of you makes a tiny mistake, he will lose his job because of it. So he’s over-reacting.

When you remain calm, it will help Bob to see that one tiny mistake is not the end of the world – or of his career.

When “Bob” conveniently forgets items that have been discussed, gently remind him. “Bob, we talked about this last week and agreed that…” When he is derogatory about an employee, quietly point out that such comments are uncalled for. People like Bob thrive in an environment where everyone ignores their outrageous behavior. But, be very tactful, because jerks like Bob tend to be overly sensitive.