Human Resource Blog

Your assumption is incorrect. There is no law that you must pay salaried workers for a holiday, if they perform no work on that day. Salaried workers need not be paid for a day when they perform no work at all. That’s true whether the employee misses work, or the employer closes the office on that day. Most companies that offer paid holidays to hourly workers also pay salaried workers for the same holidays…but there is no law that they must do so.  (If there is a written policy in place regarding payment for holidays, some states will enforce it.) 

Technically you could require salaried employees to use their PTO for holidays. A better option would be to offer them the choice between taking the time off without pay, or using their PTO and being paid. PTO is usually a combination of vacation, sick time, holiday pay and perhaps personal leave, so it’s absolutely appropriate to use it this way.

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There is no law prohibiting this measure, but it might not be a good idea. That’s because it could appear to be discrimination if the employee is a member of a protected group. For example, having an employee who is female or over 40 clock in, while employees who are male or younger do not, presents the appearance of discrimination. Heaven forbid if she’s pregnant, even if no one at work knows it. That would be discrimination based on pregnancy.

It also may not solve your problem. After all, if Sally is the only person who is clocking in and out, she could easily claim that everyone else is working a similar schedule. The employer would have no evidence to show otherwise. A better option would be to have all salaried managers clock in and out for a period.

It would be much better to focus on performance management in this situation. If the employee is not putting in enough time, it affects her job performance, right? So it’s better to address those issues directly, rather than focus on the number of hours that she is or is not putting in.

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Yes, an employer can require employees to take mandatory time off if there is not enough work in Ohio. This is a form of temporary layoff, and it can apply to one employee, or to a number of employees. It can apply to salaried workers as well as hourly ones. IThe employer can legitimately require that workers use their vacation time or annual leave during a temporary work stoppage or layoff. As long as the employer does not apply this policy in a discriminatory manner, it’s legal. The employee may be entitled to unemployment benefits during this period.

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Well, you wrote the contract so you’ll probably have to abide by it and wait until the employee has been absent 30 consecutive days. This is a fine example of how being overly specific in written employee policies can create problems, rather than solve them. Many companies would simply have said that the contract could be terminated for “excessive absenteeism” without going into specific details.

Federal laws such as FMLA and ADA don’t apply to you, because you’re such a small business. But, you’ve hobbled yourself by requiring that employees be absent for 30 consecutive days before they can be terminated.

It’s possible that if you call the employee and offer to terminate his contract, he will agree. If he returns, you can give him a choice between terminating his contract or receiving a written reprimand for poor performance during the 3 days he was at work. You need to let him know that if he is at work, he is expected to meet the usual standards for performance. The other alternative would be for you to consult an attorney to get you out of the contract that you wrote.

Other employers should note that if you had more workers, you would be subject to federal regulations including the FMLA and ADA, and this answer would be different.   

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You don’t necessarily need a written policy to address this topic. It is not necessary or even desirable for an employer to put every policy and expectation in writing. Many employee handbooks have a blanket statement to the effect that employees are expected to follow company policies and procedures.

Not clocking in and out is a performance issue. Just to be sure, inform the employee verbally or by memo that all employees are expected to clock in and out, and not write on the time card. If he does not comply, he should receive a verbal warning the first time and written warnings thereafter. To be safe, each written warning should include the words “further violations will result in disciplinary action up to and including termination.” After the third written warning, you would be justified in terminating him.    

This is a very serious issue. As you know, the federal government requires that employers maintain accurate payroll records. Most employers do this with timeclocks, at least for hourly employees.

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