Human Resource Blog

Yes, we can expand on this. There are  a number of issues in your post, so this is rather lengthy. What you are requesting is reasonable, but it may also raise additional issues. The short answer is: it is completely legal to have a salaried employee clock in and out, but unwise to pay her additional for weeks when she puts in additional hours. Doing so may permanently make her an hourly employee.

First, a salaried employee can be either exempt or non-exempt — but most of the time, when someone says “a salaried employee” they mean “an exempt employee.” Exempt employees are never entitled to overtime or additional pay when they work additional hours. An exempt employee is paid a flat salary for all hours worked during the week, whether that is 20 hours or 80 hours per week. Not every employee can be exempt. The federal FLSA, permits an employer to treat certain categories of employees as exempt. Usually a Physicians Assistant qualifies as an exempt salaried Professional under the FLSA.

The federal FLSA requires an employer to accurately track hours worked for non-exempt (hourly) workers. There is no requirement that you track hours worked for exempt employees — but nor is it illegal or unethical to do so. Some companies do require exempt employees to clock in and out, just so they can monitor the hours worked. We disagree with the PA. If she is complaining about working a high number of hours, it is irrational for her to feel insulted when you ask her to clock in and out. Obviously, if you are going to consider raising her salary based upon a heavy workload, you need to know what that workload is.

Be very cautious about paying this employee more when she works additional hours. When an employees wages vary depending upon the number of hours worked in the payroll week, the employer is treating the employee as non-exempt. When you treat an employee as non-exempt, they become non-exempt permanently — and entitled to overtime at 1.5 times the employees average rate for the payroll week.  So if you pay this employee more this week because she worked 60 hours, she is no longer an exempt employee.

Note that simply tracking the number of hours that the employee works does not make her non-exempt — but varying her salary based upon hours worked does  make her an hourly (non-exempt) employee. Still, you should avoid possible discrimination by treating all the PAs alike, if there are several in the same office.

As an employer, you can establish minimum expected work hours for an exempt employee. There is no expectation that an exempt employee will work only 40 hours per week. Many employers require exempt employees to work 50, 60 or even 80 hours per week, and in a few cases, more. This may be a simple miscommunication. The PA may be assuming that she is being paid for a 40-hour week. In reality, most employers expect exempt employees to work “whatever it takes” to get the job done.  Again, there is no additional compensation over and above the weekly salary, for an exempt employee who puts in additional hours.

As an employer, you also have the right to change the work hours expected of an exempt employee. For example, she may have been hired with the expectation that she would work 40 hours per week. However, now the practice is busier (or staff has been reduced due to a soft economy) and she is working 48 hours per week without any change in salary. This is legal, and it is a situation the majority of exempt employees have faced in the past 3 years.

Sometimes an exempt employee will be called upon to do extra work when a colleague is on vacation or ill. Again, the exempt employee is not entitled to additional payment when this occurs — even if she works 60 or 80 hours per week, rather than 35 or 40 hours.

If the PAs job duties have significantly and permanently expanded since she was hired, or if she is working many more hours, then you may make a decision that her salary should be adjusted accordingly. For example, if the practice has expanded and she  is now working twice as many hours, you may want to increase her annual salary by $10,000 to $15,000. However, for the employee to remain exempt, this increase would need to be permanent — not intermittent, based upon hours worked.

The conclusion is that it is lawful and reasonable for you to have this employee punch in and out. In fact, it is wise to track the hours worked by every employee and is not insulting. However, it would be very unwise for you to vary this exempt employees wages based upon the number of hours worked in the payroll week. Doing so would make her an hourly employee. A better tactic is to tell the employee that the extra hours she is working will be tracked, and considered with her total performance when annual evaluations are done. At that point, an increase in salary will be considered.

The answer will depend upon several factors: whether the employee has a permanent disability, and whether she qualifies for FMLA.

Under the federal FLSA or Fair Labor Standards Act, when an exempt employee works 4 hours per day, she must usually be paid her full salary for the day. This is true, whether the employee is taking time off due to illness, or because you do not have more work for her to do.

However, both the ADA and the FMLA permit an exempt employee to take unpaid time off. The Americans with Disabilities Act permits an employee with a permanent disability to take unpaid time off as a reasonable accommodation. If the employee has a permanent disability, you can allow her to work just 4 hours per day and prorate her salary based upon number of hours worked.

The FMLA permits an exempt employee who qualifies to take unpaid time off for a serious health condition. All the usual requirements for FMLA must be met: the employee must work at a location with 50 or more employees within 75 miles, must have worked for the company for 12 months, must have worked 1,250 hours in the past 12 months and must have a “serious health condition” under the FMLA definition. If the exempt employee meets all of these criteria, you can allow her to work 4 hours per day and prorate her salary.

Iff the exempt employee does not meet the requirements for ADA or FMLA, and you allow her to work 4 hours per day, she is still entitled to her full weekly salary. Our recommendation in that case would be that you do not allow the employee to return to her usual job on a part-time basis. You could require that the employee return to work only when she can work her usual schedule. Another option would be to find alternate non-exempt work for this employee to do, for 4 hours per day. If that position normally pays less, you can adjust the employees hourly rate accordingly, paying her appropriately for the job she is performing.

Sorry, but we would need significantly more information to make this determination.

As you know, an employee can be covered by both state and federal overtime laws — and those laws may conflict with each other. When they do, the employee is entitled to coverage under whichever law provides the greater protection. So this employee may qualify for overtime under federal law, under California law, or under both — or under neither. If the employee does not qualify for overtime under either California or federal law, then the employer is not required to pay overtime at all.

California has tried to set up a system where truck drivers covered under the federal regulations are not covered under the state regulations. Unfortunately, it just resulted in incredibly complex regulations.

Whether the employee qualifies for overtime under California law depends upon a number of factors, including the weight and length of the truck and where the products he is delivering were manufactured. If he is delivering products manufactured in California to their final destination in California, in a truck weighing less than 26,000 lbs., then he is entitled to overtime.

This is also problematic because usually an employee cannot be partially exempt from overtime. He is either exempt from overtime all the time, or entitled to overtime all the time. If this employee is ever entitled to overtime, the best practice would be to track his work hours and pay any earned overtime in each payroll period, in accordance with California law. In fact, because this is such a complex issue, the employer would be wise to track this employees work hours even if they choose to treat him as exempt.

Generally speaking, an employee cannot hold both an exempt and a non-exempt position at the same time. If the employee is sometimes entitled to overtime, he is always entitled to overtime. The safest option would be to either pay this employee overtime, or hire a different employee for the short haul driving.

Read the information on the link below regarding overtime for truckers in California. If you still cannot determine whether this employee is entitled to overtime, either pay it, or consult an attorney.

Read more about this at: http://www.gotovertime.com/california_truck_driver_overtime.html

We are not sure what you mean by “come forward with the virus.” There is no need for an employee to share personal medical information with the employer or with other employees. If this employee has shared that information, and you are concerned, you can require that the employee provide a release from a doctor before he returns to work, stating that he is fit for duty.

Hepatitis C is unlikely to be transmitted at work unless your employees are receiving blood transfusions from each other or sharing IV needles with each other. It is possible to transmit Hepatitis C through sexual intercourse, having a tattoo with a dirty needle, sharing a razor or toothbrush with an infected person, or having acupuncture, although all of those methods of transmission are rare.

Treating this employee differently from other workers may be illegal discrimination based on a perceived disability. The EEOC has issued regulations under the ADA specifically prohibiting an employer from discriminating against an employee with Hepatitis C, HIV, or another contagious virus. You should not single out this employee in any way. You cannot consider this information when making employment decisions like promotions or training. And there is really no need for you to — for all you know, halfof your employees have a form of Hepatitis and the others are HIV positive.

A better idea would be to send out a memo to all employees and/or train them on precautions to take when someone has an injury at work resulting in broken skin and the presence of blood — even a few drops of blood. You should provide plastic gloves for employees, and all employees should know to wear the gloves if they may be exposed to blood — anyones blood, at any time. This is a sensible precaution for any employer to take.

Very simply, in the workplace you should always assume that a worker who has been cut is HIV positive, and take proper precautions. Those precautions will also protect your employees from Hepatitis C and other diseases.

Read more about Hepatitis C at: http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001329/

Sorry, we do not quite understand this question. Apparently the employee received a speeding ticket during work hours, while in a company vehicle. The ticket belongs to the driver — not the vehicle. The employee goes to court, is found guilty and pays the fine. There is no requirement that the employer pay the fine — and very few employers would do so. (Your employee handbook should specify that the driver is responsible for paying any tickets while operating company vehicles.)

If this ticket were issued based on a camera at a traffic light or similar situation, you can merely give the name of the driver to the police. Normally they will reissue the ticket to the driver — not the company that owns the vehicle.

Most employers would require that the employee pay the fine and  show proof that it has been paid upon returning to work. In addition, the employee would be disciplined for committing a traffic violation in a company vehicle. You should also check with your insurance company — they may not want to cover this driver any more, based upon his driving record. If that is the case, you can legitimately let him go.

Although it may be legal for the employer to pay the fine and deduct it in Arizona (with the employees written permission) it is not a best practice in HR. Ideally, employers should limit the deductions they are making to an employees paycheck.