‘Labor Laws’ Category
If a multi-store manager has two retail locations and multiple associates and is regularly working alone at one location, and has one associate regularly working alone at another location, should the manager be getting overtime pay if working over 40 hours and covering floor alone over 20 hours?
This manager and associate would essentially be doing the same work, and manager would only be msnaging that one other employee during that shift.
The U.S. Department of Labor administers and enforces the Fair Labor Standards Act (FLSA) which establishes minimum wage, overtime pay, recordkeeping, and child labor standards. Under the FLSA employees are classified as non-exempt or exempt. Exempt employees are excluded from overtime pay provisions. To be exempt an employee must pass all three “tests”, salary level, salary basis, and duties, as outlined by the FLSA.
The salary level test: Employees who are paid less than $23,600 per year ($455 per week) are nonexempt.
The salary basis test: An exempt employee must receive a regular, predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced based on variations in the employee’s quantity or quality of work. Aside from a few exceptions, an employee must receive the full salary for any workweek during which the employee performs any work, regardless of the number of days or hours worked.
The duties test: An employee who meets the salary level and salary basis tests is exempt only if he/she also performs exempt job duties. The actual tasks of the job are to be evaluated, not the job title. There are three typical categories of exempt job duties titled executive, professional, and administrative.
Job duties are exempt “executive” job duties if the employee regularly supervises two or more other employees, has management as the primary duty of the position, and has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).
“Professionally” exempt work is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Advanced degrees are the most common measure of this but are not absolutely necessary if an employee has attained a similar level of advanced education through other means and performs essentially the same kind of work as similar employees who do have advanced degrees.
“Administratively” exempt employees provide support to the operational or production employees and have a major impact on the overall business. An administratively exempt employee has the authority to create or interpret company policies, has responsibilities that directly relate to the overall business operation, has the decision making ability to make significant financial impacts, and has the authority to deviate from company policy without prior approval.
In conclusion, it’s impossible to determine if the manager passes all three tests based on the information provided. Working alone or only supervising one employee at a given time doesn’t violate an exempt classification. All three tests alongside the actual job the manager performs must be considered.
It is our company policy when an employee calls in and will be absent they should provide the following:
1. Reason for the absence.
2. Expected length of absence
3. Expected date of return to work with documentation
Does this violate HIPAA?
The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protects the privacy of individually identifiable health information. The Privacy Rule does not prevent employers, including Supervisors or Human Resource Professionals, from asking employee’s for a doctor’s note or other health related information if doing so is required in order to administer sick leave, workers’ compensation, or health insurance.
It’s the employer’s obligation to ensure employees eligible for the federal Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), worker’s comp, disability coverage, or any benefit offered by the employer such as wellness programs or paid time off, are informed of their rights to use such benefits. When an employee calls out from work, the employer can request the reason for the absence, the expected length of the absence, and documentation supporting the need for the absence within reason.
It’s important to train supervisors what information to request and how to manage the information received. Requesting too much information from employees is not a good idea. The employer just needs to know if the absence is due to a medical or personal reason. An employee calling out stating she isn’t feeling well and will be out for one day shouldn’t be further questioned as to her symptoms and self-diagnosis. Also, it may be burdensome to an employee to obtain a doctor’s note for a one or two day absence, especially since some illnesses/medical reasons don’t warrant a visit to the doctor. Thus, it’s better practice and more common to require a doctor’s note after three days of absences.
Supervisors must be able to recognize when an employee may be able to take advantage of company benefits or when the company must comply with applicable laws. An employee calling out due to injuries sustained in a car accident may need to be informed of his FMLA rights. Furthermore, if the accident occurred in a company vehicle the employer must initiate a worker’s comp claim. Supervisors must understand how to evaluate if an employee’s absence requires obtaining more information in order to ascertain if additional benefits or laws apply. Depending upon company structure, supervisors may need to know “trigger” words alerting them to notify Human Resources or they may need to be trained in all applicable legislation.
My company has initiated a Voluntary Separation Program which has been offered to many US employees. My question is in the state of Texas, is a person eligible for unemployment benefits if they accept an offer for a compensated Voluntary Separation package. Our colleges in MA have recently been informed that they are eligible.
Unemployment insurance programs are administered by each state which establishes the procedure and eligibility requirements. In general, unemployment insurance provides unemployment benefits to workers who are unemployed through no fault of their own. Involuntary separation can be interpreted differently depending upon the reason for the separation.
Voluntary separation programs are used by employers as a means of downsizing their workforce. Such programs facilitate an employee’s early retirement or voluntary resignation and often offer severance benefits. By implementing voluntary separation or reduction in force programs, employers may avoid the decision of which employees to layoff; thus, reducing the potential for disgruntled employees and decreasing the risk of unlawful termination claims.
Since employees voluntarily resign under these programs, employers commonly assume that the employees will not be eligible for unemployment benefits. This is not always true. Generally, unemployment offices will take in to account the reason an individual resigned, as is the case in Texas.
In Texas, an individual may be eligible for unemployment benefits if he resigned for good cause. Resigning for a good cause work-related reason means a situation that would cause an individual who wants to remain employed leave his employment. General examples include unsafe work conditions or a significant change in the hiring agreement. Resigning instead of risking being laid off in order to receive a severance package may constitute a good cause resignation. Additionally, the Texas Workforce Commission defines a work separation to be involuntary if initiated by the employer. A voluntary separation program is clearly initiated by the employer. Moreover, some employers assume that if they offer severance pay the employee will not be eligible to receive unemployment benefits. Severance pay doesn’t disqualify an individual from receiving unemployment benefits in Texas.
We have a full time employee that was appointed to HR. She is on salary and was appointed by Lampasas Commissioners. She does not accrue vacation or personal time. She does not have a set time to come to work or leave but she is paid for 40 hours per week. Can she be put on FMLA and not receive pay biweekly? She is going to be out for 6 to 8 weeks for knee replacement. Thank you in advance for helping me in this matter.
The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Assuming the employee has worked for a covered employer for at least 12 months, has at least 1,250 hours of service for the covered employer during the 12-month period preceding the leave, and works at a location where the covered employer has at least 50 employees within 75 miles then the employee is eligible for FMLA. An eligible employee may take up to 12 workweeks of leave in a 12 month period for a serious health condition such as a medically necessary surgery.
FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, with 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law also covers state and local governments as well as public and private schools.
Regardless of whether an employee is considered non-exempt or exempt under the federal Fair Labor Standards Act (FLSA), FMLA leave is not required to be compensated. Employers may mandate employees to use paid time off accruals while on FMLA leave.
Per the FLSA, non-exempt employees are only required to be paid for hours worked. Conversely, exempt salaried employees receive a fixed, predetermined salary per pay period. In general, if an exempt employee performs any work during the workweek, he must be paid the full salary amount. There are few circumstances that permit an employer to make deductions from an exempt employee’s salary, such as during FMLA leave. An employer is not required to pay an exempt employee his full salary for weeks in which he takes unpaid leave under FMLA. The employer may pay a proportionate part of the full salary for time actually worked. Moreover, since FMLA provides unpaid leave, an exempt employee wouldn’t be entitled to receive any pay during full weeks on leave.
I have an employee working nine hours a day two days a week(1pm to 10pm) by himself on a gas station convenience store in California. We were paying him for nine hours/day (total 18 hours a week). Can he claim for not given break during work.
There are no federal laws requiring employers to provide employees with meal periods or rest breaks. However, many states, including California, have adopted legislation on the matter. California employers, in general, must provide employees working more than five hours in a workday at least a thirty minute meal period. An “on duty” meal period is permissible if the employee’s work doesn’t allow for him to be relieved of duties and both the employer and employee have a written agreement confirming an on duty meal period is agreed upon. An employee working alone in a gas station would be considered unable to be relieved of his responsibilities and would qualify for an on duty meal period. Keep in mind the on duty meal period must be agreed in writing by both parties. The written agreement must include a statement that the employee, in writing, may revoke the agreement at any time.
Also, any meal period during which an employee is not completely relieved of his job duties is considered time worked and must be compensated at the regular rate of pay.
In regards to your question, yes, the employee can claim for not being given a break. When an employee files a wage claim a Deputy Labor Commissioner considers the information provided and determines how to proceed. If the claim is not dismissed the Commissioner will schedule a conference or hearing to hear more information concerning the claim, including the employer’s perspective. The purpose of the conference is to resolve the matter without a hearing. If the matter can’t be resolved a hearing is held during which both parties testify under oath and a decision is made by the Labor Commissioner.
If the employee has already filed a wage claim it’s best for you to follow the appropriate procedures and, hopefully, settle during the hearing. If there is a written agreement in which both parties agreed to an on duty meal period then the claim will most likely be dismissed. However, if no such agreement exists it may be beneficial to you to offer meal premium pay. Meaning, for each workday that the employee didn’t receive a required meal period the employee would receive one additional hour of pay at the employee’s regular rate. Going forward, if the employee doesn’t agree to an on duty meal period the employer must either provide the thirty minute meal period during which the employee is completely relieved of his duties or pay the employee the meal premium pay.
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