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FMLA and PTO Accrual

Our paid time off is set so that when an employee meets their annual hire date, they are automatically awarded their PTO for the upcoming year. I have an employee that went out on an FMLA 3/6/17 and his hire date was 4/4/11. Normally, he would be awarded 15 PTO days. He has already passed the date he was to return to work so are we obligated to allow him to accrue this PTO?

The Family & Medical Leave Act (FMLA) doesn’t require employers to allow employees to accrue paid time off (PTO) benefits while on leave. Doing so is at the employer’s discretion. However, FMLA regulations require employers to treat employees on FMLA leave in the same manner as it treats employees on other types of leave. So, for example, if employees on vacation continue to accrue PTO then employees on paid FMLA leave must be provided the same benefit.

Though the employee didn’t return to work on the scheduled date, it’s still best to treat him as if he is still on FMLA leave in respect to PTO accruals. Reason being, without knowing the details of what has transpired from his return date until now, the employee may be eligible for additional FMLA leave or another federal or state mandated leave. Thus, treating him in accordance with your PTO policy will ensure he’s provided his full entitlements under the law.


June 19th, 2017, 9:14 PM |  Posted in: Benefits |
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PTO Policies

Can an employer establish different PTO accrual policies for exempt employees, office and clerical employees and production employees at the same company?

Paid time off (PTO) policies are considered a matter of agreement between employer and employee. Thus, employers are generally free to adopt such policies at their discretion.

Offering different PTO policies for separate groups of employees is permissible. However, the determining criteria must clearly be employment based (i.e. full time/part time, permanent/temporary, exempt/non-exempt, management/line staff, or length of service). Since such criteria vary per company, it’s best to have clear definitions established.

Further, criteria cannot be based on any protective characteristics as defined by both federal and state laws. Protected characteristics under federal law include age (over 40), disability, race, national origin, citizenship status, religion, and gender (including pregnancy and sexual orientation).

Though established criteria for differing PTO plans may be nondiscriminatory, it’s important for employers to consider the adverse impact of the determinations on protected groups and any unintentional discrimination that may exist. For example, all exempt/management employees are males while all the clericals are female. By giving less PTO to the clericals, there is unintentional discrimination against them.


June 19th, 2017, 8:59 PM |  Posted in: Benefits |
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Holiday Pay for Exempt Employees

I understand that under the FLSA employers are required to pay an exempt employee holiday pay regardless of any probationary period. However, since PTO polices are not governed, is an employer allowed to deduct time from the employee’s PTO balance to cover these paid holiday hours?

Under the federal Fair Labor Standards Act (FLSA), exempt employees receive a fixed predetermined salary for any workweek during which work is performed regardless of the quantity or quality of such work. Deductions from an exempt employee’s salary for absences occasioned by the employer violate the salary basis test for exempt status. An employer closing the business to recognize a holiday is an absence “occasioned by the employer.” Thus, you’re right that an employer cannot deduct the day from an exempt employee’s salary regardless of any probationary period.

Paid time off (PTO) benefits like vacation time are a matter of agreement between the employer and employee. So, yes, an employer is allowed to require exempt employees to use their PTO accruals to cover a business closure for a holiday. However, if an exempt employee doesn’t have enough PTO accruals to cover the holiday closure then the employee must still be paid his full salary.

It’s best to adopt a clear policy on PTO usage and ensure employees completely understand when they will be required to use their PTO accruals.


June 19th, 2017, 8:36 PM |  Posted in: Compensation |
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Employee Loaning Money and Intimidating Borrowers

I have a situation where one employee loaned money from another at a 50% weekly interest rate, basically he is a loan shark! It has now gotten to the point where the loaner has been intimidating the loanee at work during company hours. How do I go about handling this situation?

The best approach is to meet with the employees separately.

Start with the loanee. Really, the loan is a private matter between the employees but obviously it’s affecting workplace relations. So, focus on how the employee is being treated. Inquire about incidents of intimidation or other unprofessional behavior and how such actions are affecting the work environment. Let the employee know that harassing behavior is unacceptable in the workplace and it will be stopped.

It may be worth it for you to find out if the terms of the loan are illegal in your state. Some states impose restrictions on excessive interest rates, collection methods, and maximum loan amounts for personal loans. You may consider expressing concerns regarding the terms of the loan but be careful in providing advice or getting too involved. Unless the loan agreement and/or the loaner’s actions are illegal, these are two adults who made a contract presumably outside of work. Your focus is on ensuring the workplace is a safe and productive environment.

When you meet with the loaner, again focus on his inappropriate actions and behavior. Hear his side of the story. Be clear that harassment of any kind is prohibited and any behavior of that nature must stop immediately. Mention specific examples of inappropriate behavior. If you have an anti-harassment or bullying policy then refer to it. Let him know that any intimidating or aggressive behavior is completely unacceptable in the workplace and any further occurrences will result in disciplinary action. Depending upon his actions either now or in the future, termination may be warranted.

Let’s say that the loaner is asking the loanee every day to repay the money he borrowed. This may be pervasive and a nuisance but it doesn’t reach the level of intimidation or harassment. In this case, making the loaner aware that his behavior is inappropriate and a distraction at work and that it must stop should suffice.

However, let’s say the loaner is waiting for the loanee at his car every night with a group of “friends” or the loaner is repeatedly verbally assaulting the loanee or the loaner has threatened physical violence. These types of behavior warrant termination.

Remember to document the meetings and follow up on the situation.


June 19th, 2017, 8:21 PM |  Posted in: Human Resources Management |
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Positive Drug Screen w/ Prescribed Meds

Our company does pre-employment drug testing. Recently I received a positive drug test on someone we would like to make an offer. Before being sent to the lab the lady told me she was on prescribed medications and I told her to bring them with her so they could list them when sending off her specimen to the lab. Well they did not ask and she tried to give the information and the clinic said it was not necessary, if there is an issue you will hear from the testing lab, MRO. The testing lab called her on three separate occasions w/o a return call. When confronted of her positive results due to her not responding to the MRO she said she listened to the voicemails but just thought someone was trying to sell her medical insurance, she did not put two and two together. The day I confronted her about the results, she provided the necessary documents from her Physician, I sent them to the MRO but the MRO came back with, “I will not overturn her drug test”. What should I do now? She was told she had three days to retest but I’m sure it will come back the same. I’ve never been in this spot and I’m not sure how to legally handle this. Do we hire her under the circumstances? Would we be discriminating if we did not?

It’s interesting that the testing lab won’t consider the documents that the prospective employee provided to you. They may have strict guidelines that prohibit their technicians from accepting such information from anyone but the individual being tested. Or, it may be that the medications the prospective employee is currently taking wouldn’t have caused her positive test results.

It sounds like this particular lab prefers to call individuals after the test if there is a potential false positive instead of requesting a list of medications up front. (A little unusual based on my experience.) If this is the case then the individual should retest and be ready for the phone call.

Unfortunately, beyond that there is not much you can do. You’ve enlisted the services of a medical lab to conduct drug testing and you should rely on their medical expertise and results. You may think certain medications caused the positive result but you may be wrong. Now, if you think the test wasn’t done properly or the individual won’t be treated fairly during the retest then you should contact the person in charge at the clinic to ensure the next test is done properly. Specifically mention your concern regarding the prospective employee not being able to provide a list of her medications and the potential for a false positive.

If the second test comes back positive and you don’t hire her, the decision isn’t discriminatory. The decision to not hire her had nothing to do with her currently taking medications. The decision was based on the fact that she failed her drug test. You’ll be further protected against such an allegation if you ensure the second test is done in a proper manner (by contacting someone in charge at the clinic) and you have a clear past practice of not hiring individuals with positive drug test results.


June 16th, 2017, 7:25 PM |  Posted in: Hiring and Staffing |
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