Human Resource Blog

There are no special concerns regarding this change, but in the post-Ledbetter era, every salary change and especially every salary reduction should be carefully documented. The Ledbetter Fair Pay Act, of course, extended by decades the time frame that employees have to claim illegal discrimination based on wages.

There could be a concern about illegal discrimination if most or all of the affected personnel fell into a protected group. If all of the affected employees were female, while much of your (unaffected) workforce was male, that might be a concern. Or it might be a concern if many of the affected employees were African American, while the unaffected workers were Caucasian (or vice versa.) This could result in charges of illegal discrimination based on sex or race. And even though those claims would be unfounded, it can be expensive to defend against them.

However, keeping detailed records of why the salaries were reduced should prevent any suit from being filed. These records should be in each employees personnel file, as well as in a separate file detailing all the payroll reductions and the reasons behind them. For each affected employee, you will want to identify specific employees within your organization who perform similar jobs, and their salaries to show that the new, lower wage is fair.

It is also helpful to discuss this information to the affected employees, explaining how you arrived at this decision.

The Kansas employer can require that employees not leave the premises during an unpaid meal break or lunch, of any duration. This is perfectly lawful.

Kansas has no break law at the state level, so the relevant statute is the federal FLSA or Fair Labor Standards Act. Under the FLSA, a meal break longer than 20 minutes need not be paid as long as the employee is relieved of his or her work duties during the meal period. If the employee is required to work during the meal break, or to be available for work, then the meal break must be paid. But the FLSA regulations specifically state that the employer can require an employee to remain on the premises during an unpaid meal break.

The US Department of Labor regulations specifically state:  It is not necessary that an employee be permitted to leave the premises if he is otherwise
completely freed from duties during the [unpaid] meal period.

Read more about this at: http://www.dol.gov/dol/allcfr/Title_29/Part_785/29CFR785.19.htm

No, there is no potential problem in most states with changing this employees schedule, with one exception.

Even if there were an agreement in place 8 years ago when the employee was hired, the employer can unilaterally change that agreement  at any time. It could have been changed 7 years ago and it can be changed now. Business needs change, and employers must respond to them. To be on the safe side, simply inform all the managers in writing of the “new policy” that all managers at all locations will be sharing the rotation. (This is not news to the other employees, of course.)

The only exception would be if this were a reasonable accommodation for the employees sincerely held religious beliefs. For example, if he was an observant Orthodox Jew, he would not be able to work from sunset Friday to sunset Saturday, because that is the Jewish Sabbath. Employers must make reasonable accommodations for an employee’s sincerely held religious beliefs. In this case, you have already demonstrated that you can operate the location with this manager off on Friday and Saturday. For that reason, the EEOC might very well require that you continue to offer this religious accommodation, unless you can show it is an undue hardship for you.

However, even if this were a religious accommodation, the employee must be able to work until an hour or so before sunset on Friday, and on other days like Sunday, Thanksgiving and Christmas — because his religious accommodation would not extend to those days.

A few states have laws that permit each employee one day per week off for religioius observances. However, it appears that you are not in one.

If the employee does not have religious grounds for being off on Friday and Saturday, there is absolutely no problem here.

No, this would be a violation of the federal law governing exempt employees, specifically the FLSA or Fair Labor Standards Act. The FLSA requires that an exempt employee be paid the same weekly salary, *regardless of the quantity or quality of work performed.* This means when the exempt employee works fewer hours in the week, he or she must still receive the entire weekly salary.

Under the FLSA, an exempt salaried employee is entitled to his or her entire weeks salary if the employee a) does any work at all during the payroll week and b) is ready, willing and able to work the entire week — even if the employer does not have a full weeks work available. You could give salaried exempt employees the entire payroll week off, and not pay them for the week — called a week of furlough. Or, you could require that exempt employees work on Labor Day, Thanksgiving and the day after Thanksgiving. But as long as you choose for them not to work on those holidays, you have to pay them for the entire week anyway.

 (Different rules apply if the employee is not ready, willing and able to work the entire week, due to illness or another reason.)

If you do not pay the exempt employees for Labor Day, you are treating them as non-exempt employees. The US Department of Labor would likely rule that the employees never were exempt, and you have been illegally trying to avoid paying overtime. In many cases, the DOL has gone back and made employers pay overtime to the salaried employees for the past 3 years.

If these employees never work overtime, you might want to consider changing their status to non-exempt. This is legal, as long as the change lasts 3 months or longer.

Hi T!

It is very unwise for the employer to ask this employee to work, or even permit her to work if the employee wants to. First, when doctors say * rest* they often mean *bed rest* — the employee is not supposed to be out of bed at all.

Really, working while she is supposed to be *resting* defeats the whole purpose, doesn’t it?

Second, if the employee in any way reinjures herself or makes her condition worse through driving to work, working, etc., the employer may be liable. It is even possible that the complication will become a workers comp injury. This is why most employers won’t allow an employee to return to work without a doctors release saying she is fit for duty. In this case, you are very aware that the employee does not have a doctors release.

If your company has more than 50 employees, this leave is FMLA and the employee cannot be required to do any work at all.

If the employee is exempt, and she does even 10 minutes of work, she is entitled to payment for the entire day. In addition, that day cannot be counted as  FMLA.

It  is reasonable for the employer to expect the employee to stay in touch during her leave so she can update the employer on when she will return. This might mean taking a phone call or replying to an email. But if the employee is physically unable to do those things (for any reason ranging from traction to depression) the contact may need to be with a family member.

You can require that the employee complete FMLA papers and send them to the employer (or bring them to the employer.) However, again, these may be completed or delivered by a family member.

It sounds like this employee may have essential documents like sales figures or payroll records. The best practice would be for the employer to do whatever it takes to recreate those documents or produce new ones. You should take exactly the same actions you would if the employee had been hit by a truck and was in a coma.

If the employee was supposed to leave these documents at work, or to have prepared them before she went on leave, then that is a performance issue that should be addressed upon her return. It would be appropriate to discipline the employee for that performance problem. But denying her medical leave is not an appropriate form of discipline.