‘Labor Laws’ Category
Hello I have an employee who in the past 2 and half yrs. of employment has been late to work once a month and has had one written warning for no-call no show.no other warnings attached to his file. He has applied in the past for FMLA, this last incident he did not notify his supervisor of an absence till 2 hours into his shift that he had a family emergency with his son in the hospital. and could not contact him to let him know that his son was in the hospital. Company is planning to suspend him with a written warning for not giving proper notification of absence for one day according to this because he has a prior no call no show warning in his file and continues to be late but their has been no documentation for that or verbal warnings on record of the tardy. HE has proof of medical dr. notes for his soon being seen. Is this legal? By the way we are located in California and are a union member company.
The California Family Rights Act (CFRA) and the federal Family and Medical Leave Act guarantee covered employees up to 12 work weeks of unpaid, job protected leave for qualified reasons. The leave can be taken intermittently. Generally, an employee must provide an employer with thirty days notice of the need for a forseeable leave, such as a planned medical treatment. However, when the need for leave is unexpected, the employee must notify the employer as soon as possible and practical. The federal Department of Labor provides the following example: If the employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee is not required to leave the child to report the absence while the child is receiving emergency treatment. So, disciplining the employee for failure to follow call out procedures during a family emergency which he can prove seems inappropriate regardless of the write up on file.
Also, an employee doesn’t have to specifically request FMLA leave to be covered. It’s the employer’s obligation to recognize the notice of a possible FMLA qualifying event and make the appropriate determination. In this case, an employee stating his son is in the hospital should immediately make a supervisor or HR staff consider the need for FMLA leave. An employer cannot discipline an employee for exercising his FMLA rights, even if the employee didn’t specifically request a FMLA leave.
The lack of write ups in the employee’s file is concerning. If the employee has been late at least once a month for over two years there should be several disciplinary actions on file or at least documentations of conversations had with the employee concerning his constant tardiness. Additionally, an employee should be spoken to about each individual insubordination issue as it arises. The supervisor/HR shouldn’t wait until several issues have occurred and then all the sudden take severe disciplinary action like suspension. A policy of progressive discipline is vital in protecting an agency from wrongful termination or discrimination allegations.
Progressive disciplinary procedures are fairly standard in collective bargaining agreements (CBA). I’m surprised a CBA would allow for a covered employee to be suspended with only one write up on file in two years. Assuming the CBA permits such action, it’s still in the employer’s best interest to not suspend the employee for failing to call out in a timely manner during a family emergency. With the information you’ve provided its better practice to discuss the situation with the employee, especially to ensure the proper administration of FMLA. A documentation of the discussion can be placed in the employee’s file but not as a written warning. If the employee is late to work in the future, the tardiness must be addressed with him immediately. At that time a written warning can be issued which clearly states tardiness is against company policy and future tardiness will result in further disciplinary action including suspension and up to termination.
A 40 hour regular shift employee after completing his 40 hour work week is called back into work (on the same week)for a 8 hours overtime then he is released for two hours and then is recalled back into work for an additional 3 hours. Is the employee entiled to 8 hours OT and 4 hours minimun OT for the 3 hours call back?
The federal Fair Labor Standards Act (FLSA) requires non-exempt workers receive overtime pay of at least one and one-half times their regular rates of pay for hours worked in excess of 40 in a workweek. Non-exempt employees are paid per hour worked. The two hours the employee was released from work is not compensable; thus, is not used in calculating overtime. It appears in this situation the employee is entitled to a total of 11 overtime hours. Some states have adopted overtime legislation in addition to the FLSA. Though I’ve never heard of a four hour minimum overtime rule outside of a collective bargaining agreement, it’s best to find out if your state has any applicable laws. You’re welcome to re-post your question with the state listed.
It’s a slightly different matter if the employee was on call during the two hours after his initial shift and before his overtime shift. Whether non-exempt employees must be compensated for their on-call time depends on whether they are “waiting to be engaged” or “engaged to wait” as defined by the federal Department of Labor.
An on call employee who is able to be on call from home or use his time freely for personal matters is considered waiting to be engaged and the hours are not compensable. However, if the employer places so many restrictions on what the employee is able to do or excessive calls are received during the on call time then the hours worked must be paid. For example, an employer requires employees to respond within a short time frame or an employee receives so many calls he can’t eat his dinner.
An employee required to remain on call at the employer’s location or so close to the premises that he cannot use the time effectively for his own purposes is considered engaged to wait and must be compensated for that time. For example, a mechanic reading a book while waiting for a customer to arrive or a fireman playing checkers while waiting for an alarm are both required to be paid for their waiting time.
Compensated on call hours are considered hours worked and are subject to overtime regulations as well as any actual overtime hours worked.
I have an employee who has been off for surgery and has provided documentation from his surgeon clearing him for full duty with no restrictions. The employee has beef in to see the company physician for a return to work evaluation. To which our doctor evaluated him as unable to do the job. The employee has filed a grievance against the company. What are my options
It can be a tumultuous situation for an employer when the employee’s doctor permits him to return to work after medical leave with no restrictions but the company’s doctor says otherwise. The employer must be careful in its determination since such situations are often the cause for lawsuits.
An employer may require a medical exam of an employee by its own provider at its own expense when an employee returns from medical leave as long as the exam is a business necessity and relates to the employee’s job. For example, it would be feasible to require a warehouse worker who was on leave for knee surgery to be examined to ensure he is still able to lift heavy boxes, an essential function of his job. Under the Family and Medical Leave Act (FMLA), if a medical examination demonstrates that an employee is not able to perform the essential functions of his or her job, with or without reasonable accommodations, then the employee will not be entitled to reinstatement under the FMLA. However, if the condition is covered under the Americans with Disabilities Act (ADA), the employee may be entitled to a reasonable accommodation such as restructuring his job or supplying equipment to aid the employee in performing job functions. Also, it’s important to be aware of any applicable state legislation since some states offer additional protection for disabled workers.
Reviewing your options is difficult without knowing the full scope of the situation and what specifically the employee has cited as the reason for the grievance. Follow the normal grievance procedure as outlined by company policy or collective bargaining agreement. Make sure your policies, practices and all communication with the employee are clearly documented, especially the practice of requiring employees returning from medical leave to be cleared by the company’s doctor. Hopefully, you have proof that the employee was aware of such policies. Be ready to prove your policies/practices have been uniformly applied in the past and in this case without discrimination. Understand specifically why the company’s doctor didn’t approve for the employee to return to work and be prepared to defend his determination against the opinion of the employee’s doctor. Lastly, be prepared to explain why the employee’s impairment makes him unable to perform the essential job functions.
We have an employee who has ongoing medical restrictions and cannot fulfill the requirements of his initial job description (lifting and standing restrictions.) We have moved him to another job within the company but there is not enough work.
At first, we thought after rest he would heal but that has not happened and there is more and more restrictions. He was a skilled worker but is not good at training others.
The employee has requested a reduction of hours and has put in another reduction of hours. He is trying to balance some pension benefits and salary below some ceiling.
He is an employee with 5 years of high caliber work but the last six months have been not stellar. His new aim is to put in the hours and find out how few hours he must work.
How far must we go to be loyal to the employee at the cost to the company?
The Americans with Disabilities Act (ADA) prohibits private sector employers who employ 15 or more individuals from discriminating against qualified individuals with disabilities in all aspects of employment. The law requires that an employer provide reasonable accommodation to an employee or applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. Per the Equal Employment Opportunity Commission (EEOC) a reasonable accommodation is any change in the workplace (or in the ways things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation does not include removing essential job functions, creating new jobs, and providing personal need items such as eye glasses and mobility aids.
The U.S. Department of Labor provides assistance to employers in complying with the ADA titled Job Accommodation Network (JAN). According to JAN’s Practical Guide part time work is a form of reasonable accommodation; however, employers probably do not have to change existing full
time jobs to part time as an accommodation under the ADA. According to informal guidance from the EEOC, when an employee is asking to cut his/her hours significantly, then, in essence, the employee is asking for a reassignment to an existing part time job. The essential functions of a job are changed when the job is cut in half. It seems that you already went beyond the good faith effort expected of employers by transferring the employee to another job and reducing his/her hours.
It’s also important to consider the Family and Medical Leave Act (FMLA). The FMLA entitles eligible employees of covered employers unpaid and job protected leave for specified family and medical reasons. Eligible employees are entitled to up to twelve work weeks of leave which can be taken intermittently. Instead of reducing the employee’s hours once again an intermittent FMLA leave could be considered, assuming the employee hasn’t already exhausted his/her leave entitlement. You could explain that the leave could provide the employee the time he/she needs to heal. FMLA is by no means considered a reasonable accommodation; it’s the legal right of an eligible employee.
The ADA and FMLA were adopted in to federal law to encourage employees to work and to protect their jobs so they could return to work. As long as you’ve made good faith efforts to assist the employee in order to continue working and the employee’s continued requests for accommodations are becoming an undue hardship, it would be difficult for the employee to claim discrimination. Documentation and being able to prove your ongoing accommodations as well as why continuing such accommodations would be a significant financial burden are essential for disputing a discrimination allegation.
Can an exempt employee skip lunch and leave early? I have an employee that comes in at 7:30 am and leave at 3:30pm, and she skip lunch.
Break and meal period requirements under the Fair Labor Standards Act (FLSA) generally apply to non-exempt workers only. However, you should check your state employment laws to ensure there are no requirements for breaks or meal periods for any employees. If your state doesn’t have legislation regarding the matter then it’s up to the employer to adopt a policy or practice. Regardless of legal mandates, it’s important to encourage employees to take their breaks or meal periods, if offered. There is statistical evidence that employees who take breaks during the workday have increased physical and mental well being which, in turn, increases employee productivity.
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