Human Resource Blog

Yes, you can terminate an employee for refusing a request that is reasonable, ethical and lawful — and requesting that the employee sign a memo stating a new company policy is all of those.

In the workplace, the employer generally makes up the rules and the employee can deal with it or quit. The workplace is not a democracy. Employees do not get a vote on new policies or working conditions. The employer makes those decisions unilaterally. (The only limits are employment laws — obviously, the employer cannot implement any policy that is illegal.)

Many employees feel they have a *deal* with management, and the employer needs their permission to change that *deal*– but this is not true. The employer sets the policys, and you as the employer can change them at will.

When an employer changes company policy, it is a best practice in HR to issue a memo or written copy of the new policy to all employees. The employees are asked to sign the policy, to indicate that they have been informed of it. However, the policy goes into effect whether the employee signs his or her copy, or not. You do not need the employees permission to change policies, or to enforce a new policy. The signature simply shows that the employee is aware of the change in policy.

Even though you lawfully can fire an employee for refusing to sign the policy, we do not recommend it. A better tactic is simply to issue a written warning to the employee, for the refusal. Have a witness note on the new policy memo *Discussed with employee on 11.6.09. Employee refused to sign.* Then both the witness and the manager would sign the memo. This fulfils the need to prove that the employee was aware of the new policy. (You can use the same tactic with written warnings, if an employee refuses to sign one.)

We are not familiar with the term *grace time* so it is hard for us to address that aspect of your question.

You can discipline employees by reducing their paid annual leave, but frankly it is generally not good management. It creates a great deal of ill will, often from all employees, not just those affected. In addition, it makes the employer look paternalistic and vindictive.

It also defeats the purpose of granting paid vacations. Research has shown that taking annual vacations makes employees more productive. So by taking away vacation time, you are making your employees less productive — which is a bit like shooting yourself in the foot.

It would be better to follow normal disciplinary procedures with this problem. Simply issue a written reprimand to an employee for any week that he or she neglects to sign in and out. If an employee accumulates 3 written warnings, then suspend the employee for 3 days without pay. If the employee still neglects to follow the policy, then he or she should be terminated. Usually it will only take one or two warnings for all the employees to begin to comply with this policy.

The premiere training seminars in HR are those offered by SHRM, the Society for Human Resource Management. SHRM seminars are not cheap, but they are very effective. We have also heard good things about Skillpath seminars.

New York state provides relatively little education for employers. However, a list of the laws they enforce is at: http://www.labor.state.ny.us/workerprotection/laborstandards/labor_standards.shtm  You may find an HR class at your local community college more helpful.

You also need to comply with applicable federal laws such as FMLA, which applies to employers with 50 or more workers within 75 miles.

This is discrimination, but it is not illegal discrimination.

It is important to keep in mind the difference between legal and illegal discrimination. Federal laws, including Title VII of the civil rights act, prohibit discrimination against employees based on race, color, religion, national ancestry, disability, age (between 40 and 70) and pregnancy. However, they do not prohibit discrimination against employees for other reasons. For example, it is perfectly lawful and reasonable for an employer to discriminate between an employee who comes to work on time, and one who does not. It is perfectly lawful and reasonable to discriminate between employees who do a good job, and those who do not.

It is also reasonable for an employer to discriminate between an employee who is obtaining a work-related degree, and one who is not. So treating these employees differently is a form of discrimination — but it is lawful discrimination. Very few employers would excuse an employee from a mandatory meeting due to a conflict with the employees unrelated schooling.

There is no law or even common HR practice of employers granting concessions to employees who happen to also be students in an unrelated field. For better or worse, this *excuse* for missing a meeting is no better than *I have a date*. Virtually every university has a system in place to give adult students who have a scheduling conflict exams at a different time.

Suppose both employees were pursuing degrees in education, and the Caucasian employee was excused from mandatory meetings, while the African American employee was not. That would be illegal discrimination based on race. But as long as the employer treats all employees pursuing a degree in education the same, and employees of all races who are pursuing a degree in an unrelated field the same, that is legal discrimination.

No, this is not lawful. Both the federal and Virginia minimum wage laws require that employers pay workers for all hours worked. Time spent in mandatory training is hours worked. Especially if the training is on the employers premises, and job-related, it is always paid work time.  Because you are a call center, you probably receive and make calls to other states, which means you are subject to the federal employment laws, including the FLSA or Fair Labor Standards Act as well as Virginia employment laws.

There are additional issues with this situation. The wages you are offering are too low, and they are not paid soon enough. The federal minimum wage is currently $6.55 per hour. Assuming that these employees are training 40 hours per week, you must pay them at least $6.55 x 40 hours = $260 per week. Under the FLSA, wages are due on the employees regular payday. Under Virginia law, hourly employees must be paid at least twice per month. So waiting 4 weeks to pay the employees is not legal.

Presumably, you are proposing that any individual who does not successfully complete the training would not be paid at all, even if he or she worked 3 or 4 weeks. This is completely illegal under both Virginia and federal law. To quote our favorite U.S. Department of Labor Advisor, *Not paying employees means they are working for free. Working for free is slavery. It was outlawed in the U.S. in the 1800s.*

To put it another way, you are asking employees to work for nothing for 2 to 4 weeks. This is illegal under both federal and Virginia law, even if the employee agrees. If the law did permit this, you could ask/require that employees work for nothing all the time.

The danger, of course, is that an employee would file a wage claim with the Virginia Department of Labor and Industry, or the U.S. Department of Labor. This would result in an expensive lawsuit, and the company paying back wages, interest, fines and penalties.

A better option would be to pay employees the minimum wage while they are training, and offer a bonus of $100 or more for completion of the training program. If you are having a high percentage of new hires who do not successfully complete training, there are 3 solutions: 1) Improve the selection process 2) Improve the working conditions 3) Improve the training process, or make it easier.   

Another option would be just accepting that many new hires are not sufficiently motivated to complete the training, and that this is a normal cost of doing business in your industry.  

Read more about this at: http://www.dol.gov/esa/whd/regs/compliance/whdfs22.pdf