Human Resource Blog

This is a simple question with a deceptively complex answer.

Under the federal FLSA or Fair Labor Standards Act, a salaried employee can be either exempt, or non-exempt. Exempt employees are paid the same salary every week, regardless of the quantity or quality of work performed. Exempt employees are never entitled to overtime, even if they work 100 or more hours per week.

A non-exempt employee is entitled to overtime when he or she works more than 40 hours in the week. In addition, the employee can be paid less during weeks in which he or she workers less than 40 hours.

Exempt or non-exempt status is determined by a) salary and b) the employees primary responsibilities. In order to be exempt, the employees salary must be at least $455 per week. The FLSA recognizes 5 classes of exempt employees: Outside Sales, Executives, Administrators, Computer Pros and Professionals.

Finally, there is no law that any employee must be treated as exempt. Even the CEO can be paid an hourly wage, if the employer prefers. When an employee is treated as non-exempt, they are non-exempt and are eligible for overtime.

We vote for two separate meetings.

The problem here is that the floor supervisor behaved inappropriately, but if he or she is chastised in front of the employees, it undermines the supervisors authority.

The floor supervisor and her boss should meet, and the boss should counsel the supervisor on more appropriate ways to manage people. The floor supervisor may be disciplined for treating an employee with disrespect by shouting at him, or the supervisor may simply be warned.

Then the floor supervisor and her boss should have a meeting with both employees, to resolve the differences between the two employees. (The floor supervisor should have had such a meeting to begin with, rather than letting the problem deteriorate into a shouting match.) This will be like any other session with two employees. Each employee will get the chance to present his or her side. Then the supervisor will find common ground, and offer a solution. Both employees will agree to the solution, and to work together in the future. The employee who shouted should be disciplined. There is no need to discipline the other employee. The floor supervisor should apologize for shouting, and indicate that she will not do it again.

The floor supervisor should emphasize that next time either of them has a problem, they should bring it to the floor supervisor, instead of confronting the other employee.  

No, because generally there is no need for the employer to respond in writing, under these circumstances. When an employee quits, the employer should always request that resignation in writing, even if it is scrawled on a cocktail napkin. This is to avoid paying unemployment benefits.

However, none of that is a consideration with an independent contractor. The contractor stops working, the company stops paying — neither requires written documentation from the employer. If there is something in particular that you want or need to notify the independent contractor of, you could certainly send a letter stating it. Word processing programs have templates for standard business letters.

Our favorite source of business forms of all types is www.laborlawcenter.com

In most states, the employer can lawfully terminate an employee who refuses to sign a written reprimand, but there is a better way to handle this situation.

There are at least two sides to every issue. Many times employees refuse to sign a reprimand because they feel that their point of view has not been heard. Any good disciplinary discussion will permit the employee to state his or her case, before disciplinary action is taken. (Occasionally the employee has a valid point, and no disciplinary action is taken.)

First, when the employee signs a written reprimand, he is not admitting guilt. The employee is simply acknowledging that a conversation about this issue took place on that date. The written reprimand still counts, whether the employee signs it or not. Sometimes explaining this to the employee is helpful.

Second, employment policies are set by the employer, not the employee. So whether or not the employee agrees with the policy is immaterial. The employer does not need the employees permission to implement a policy, or to reprimand an employee.

To be fair, many employers provide a space on the reprimand for the employee to write a note. The employee can write *I disagree with this reprimand* or even a more specific rebuttal, and sign it. The reprimand still counts.

However, if the employee still refuses to sign the reprimand, there is a simple remedy. Simply call another supervisor into the room. Ask the employee again to sign the written reprimand. The employee will refuse. The second supervisor simply writes *Discussion took place on (date.) Employee refused to sign. Witnessed by * and then signs and dates the reprimand form. The second supervisor is functioning as a witness that a discussion did indeed take place about the issue at hand, on this date. (If the nature of the work means there is not another supervisor available, the manager can ask a trusted employee to act as witness.) Again, the written reprimand still counts, even if the employee refused to sign it.

There are two purposes for a written reprimand. The first is to improve employee performance. The second is to  avoid paying unemployment benefits if the employee must be terminated. As long as the discussion with the employee is documented, the employee does not have to sign the reprimand.

You can certainly report this possible identity theft to the police. However, if the employee merely copied the information and did not pass it on to anyone else, then what she did is unethical and shows very poor judgment in not keeping company records confidential — but it is not necessarily illegal. Still, knowing that the police have been called (and hopefully, being questioned by them) will convince her that this was a bad idea.

Obviously, you should require that the employee return the copy of the payroll to you. (This is mostly symbolic, since she may have made additional copies.) Second, you should improve your security. Payroll, employee files and other confidential records should be stored in a secure, locked file cabinet. The file cabinet should be locked at all times when not in use. If you were permitting this employee to copy her own personnel record (which there is seldom a need to do, legally) you should have taken it out of the file cabinet and then locked the file cabinet again. (If the office is poorly organized or in a mess, that should be corrected as well.)

Third, take disciplinary actions. You may want to fire this employee. (At most companies, even reading payroll records to find out what other people make is failure to keep business documents confidential — a serious violation of company policy punishable by termination.) Some employers would be tempted to keep this employee on staff, so they can keep an eye on her. In that case, you might want to suspend her for 3 or more days without pay. Be sure to document any action with a written reprimand, because we are fairly sure you will be terminating this employee in the future.

However, you should also take action against the manager who failed to keep this payroll information secure, by leaving it out where anyone could see it and walking out of the office. In a few states, including Texas, the employer has broken the law, when anyone outside the company learns an employees social security number. This was very, very poor judgment and if you were the one who failed to establish a policy to keep this information secure, you need to kick yourself.

We all hope that every employee will act in an honest and ethical manner at all times, but you can never make that assumption. So you need to establish HR and payroll policies that protect company information from dishonest employees. The best practice is not to use social security numbers to identify employees (and in fact, in several states it is illegal to do so.) You may want to update your payroll to computerized records, or to revamp the system to eliminate social security numbers.

You may also want to send a memo out to employees that unfortunately, there was a security problem and their social security number was copied. This will allow them to alert their bank and be especially vigilant about identity theft.  

At a well-run company, this violation would have been impossible. You may want to hire an HR consultant, or to hire a business manager with extensive HR and accounting experience to clean up your procedures.