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Eligibility for Unemployment

I have 3 write ups on a worker that she refused to sign. She is not doing what she is supposed to. If I fire her will she be able to draw unemployment?

Though eligibility criteria vary from state to state, unemployment benefits are normally awarded to employees who are unemployed through no fault of their own.

Any employee can file for unemployment benefits, even ones who were terminated. A terminated employee may receive unemployment if he was fired for minor or unintended violations such as poor judgment or being late a few times. Major misconduct such as harassment or stealing will generally render a worker ineligible for unemployment.

Typically, an employee with a history of poor performance who is subsequently terminated for continued performance issues wouldn’t qualify for benefits. Keep in mind that states define “at fault” differently and the state will ultimately determine if the employee is qualified for benefits.

Most states have a claims process during which the state requests information regarding the worker’s employment, reason for leaving the company, and if the employer has any reason why the worker shouldn’t receive unemployment benefits. It is then up to the employer to contest the worker’s eligibility. The best the employer can do is offer concrete evidence supporting the termination decision.

December 21st, 2014, 9:34 PM |  Posted in: Human Resources Management |
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Non- Mandatory Meeting – Paid or not/

Non mandatory meeting is announced. Does an employee have to be paid if they decide to attend?

The federal Fair Labor Standards Act (FLSA) establishes compensable work time i.e. time that must be paid. Under the FLSA attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

December 21st, 2014, 9:06 PM |  Posted in: Human Resources Management, Labor Laws |
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Overtime Hours

Is it lawful to change the work schedule from Monday to Sunday to get out of paying overtime?

The federal Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay and recordkeeping requirements for employers. Unless exempt, covered employees must be paid at least the minimum wage for each hour worked and overtime pay for all hours worked over 40 in a workweek.

A workweek is a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. The workweek does not have to coincide with the calendar week, but instead it may begin on any day of the week and at any hour of the day.

Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the hours the employee is scheduled to work. Employers may choose to change the workweek only if the change is intended to be permanent and is not an attempt to avoid overtime pay requirements.

Changing the established workweek only to evade overtime pay is a violation of the FLSA. Violators may be subject to back pay of overtime to affected employees and costly fines.

December 19th, 2014, 2:49 PM |  Posted in: Human Resources Management, Labor Laws |
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Letter of request to report back to work

How will I make a letter requesting an employee to report back to work because we had a force leave due to non availability of raw materials but now we are on operations again and we need him back? Thanks.

Without knowing all the details it’s difficult to provide suggestions for exact wording but you could use something simple like this:

Dear John Smith,

Business operations have resumed and we are now able to return you to work effective January 1, 2015. Please contact us at 000-0000 to confirm you’re ability to return to work.

We look forward to having you back on our team.

Thank you,

XYZ Corporation

If the employee needs to know details regarding benefits or other important information, remember to include them in the letter as well.

December 19th, 2014, 2:38 PM |  Posted in: Human Resources Management |
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Reporting Late and FMLA

I have an employee that routinely uses fmla to cover their tardiness. We have a policy that all employees must be on their job at 6 a.m. when the bell sounds. Recently this employee called in to report their fmla tardy at 5:40 but managed to clock in at 5:58. Since there is a great distance from where you clock in to where the employss works, they were not on their job until 6:02. Is the employee at fault for not being on their job at 6 since technically they could not be charged fmla because they clocked in before the start of their shift? She they be charged fmla until they were able to get to their job? Thanks!

The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take twelve workweeks in a twelve month period of unpaid, job-protected leave for specified family and medical reasons. Eligible employees are allowed to take FMLA leave for both unforeseen emergencies and planned absences involving the care and bonding with a newborn, adopted, or foster child; and to care for oneself or immediate family member with a serious health condition.

There are two issues here: Is the employee’s tardiness actually considered a covered leave and, if so, can the employer deduct from the leave bank for the four minutes it takes to walk to the place where work is actually performed?

FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Under FMLA regulations, there must be a medical need for such a leave and it must be that the medical need is best accommodated by an intermittent or reduced schedule leave. The medical certification submitted to the employer must address the medical necessity for intermittent leave and state the estimated frequency of the leave. If the initial medical certification doesn’t state the need for intermittent leave or if it’s determined that the employee’s tardiness/absences substantially differ from what the certification states, the employer may request recertification to substantiate the need for more frequent absences as intermittent leave.

As long as the tardiness/absences are verified by the medical certification and covered under the FMLA, the employee cannot be disciplined for them. However, if the employee is unable to provide a medical certification substantiating the need for intermittent leave under the FMLA, the tardiness/absences are considered unexcused and normal disciplinary procedures should be followed. If this ends up being the case, it’s important to have clear documentation given to the employee stating that the tardiness/absences are not covered under the FMLA. It would also be a good idea to have a documented conversation with the employee ensuring he is aware the tardiness/absences are not covered and he will be subject to disciplinary actions if further lateness occurs.

If it is determined that the tardiness is covered, only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. The actual workweek is the basis for calculating the leave time used. So, if the employee is scheduled to clock in at 6 AM then no leave time should be deducted in this case. Also, to note, employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less.

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