Human Resource Blog

Frankly, we are very surprised that HR and your director are reluctant to take action here. Is she the daughter of the president of the company? Or having an affair with somebody important? Because their reluctance seems irrational.

If the Assistant Manager is an hourly employee, your company is in violation of federal law due to her actions. The federal FLSA requires that an employer keep accurate records of an employees hours worked, for 3 years. By asking another employee to clock her in when she is not at work, she is falsifying those records.

Most companies have a provision in the handbook that permits them to immediately terminate any employee who falsifies company documents or payroll records. And your assistant has done both.

Most companies would fire even an hourly employee who did this — and managers are expected to be more responsible and more ethical.

There are really 3 different issues here: 1) Phased retirement 2) Unapproved time off and 3) A COO who is inefficient. Of these, by far the most difficult to deal with is number 3.

1) Phased retirement is different from an employee just randomly taking time off because they feel like it. Under phased retirement, the exempt employee accepts a position at a lower rate of pay. Instead of being a Marketing Director with an annual salary of $100,000, the employee accepts the position of Marketing Director Level 2, at $80,000 per year. The verbal agreement is that the employee will work 32 hours per week instead of 40 hours per week.  In some circumstances these phased retirement agreements are legal, and we assume that you got legal advice before you took this step.

Before the employees start taking time off, two things need to happen. First, the policy needs to be approved and second, they need to accept a position at the lower salary (preferably in writing.) Note that you cannot pay the exempt employee one salary when they work 40 hours in the week and a lesser salary when they work 32 hours per week. That would make the employee non-exempt under FLSA. (Although, one option might be to switch these employees to hourly.)

2) Unapproved time off. You say that some of these employees have reqested a reduction in the work week.  You need to respond that you cannot approve the reduction, because the company has no phased retirement policy in place. If these employees start taking time off, they should be treated just as any other exempt employee who misses work would be. If you have no work for them to perform, then they must be paid the full weeks salary. However, if there is work for them to perform, and they stay home for one or more complete work days, that would fall under the category of them taking time off for personal business. They could use their PTO. If they take additional days off for personal business, then they need not be paid for that time. 

3) Inefficient COO. Many members of upper management play the game that your COO is playing. By delaying a decision, they force you to make it. Then, if the decision proves to be a mistake, they can blame it on you. (Others are just disorganized or have too much to do.) Your best bet is to create a sense of false urgency about the decision. In this case, you would approach the COO and name the employees who are waiting for this decision. Let him know you cannot approve the requests for reduction in work week, until a policy is in place. Follow up this phone or verbal conversation with a written memo that says the same thing. (Some people respond better to verbal communication, some to written communication.) Also let the employees know that you are awaiting a decision from the CEO.

Sometimes it works better if you make it a multiple-choice question. Suggest four alternatives: that the CEO approve the policy, that he reject the policy,  that you get a legal opinion on the policy, or that he suggest another course of action. Make it simple for him to respond by including all the relevant material attached to the memo (even if he already has multiple copies of them.)

The CEO will almost certainly approve the policy quickly at that point. (In fact, he will probably claim that he thought you had already implemented the policy, and try to make you look dumb for not doing so. That is just how this game is played.)

It sounds like you have handled this situation appropriately by asking the employee to chat less and work more. The issue here is really job performance, not sexual orientation. (In some states, it would be illegal for you to consider the employees sexual orientation in any job action. So you should treat this situation exactly as you would if the male employee were engaged in explicit conversations regarding heterosexual activity.)

If the problem recurs, because this employee is close friends with upper management, this is a polically sensitive topic. Your best bet is to take what you have learned to a member of upper management and ask how they would like you to handle the situation. The ideal would be for you to print out the *chat* if you possibly can. (Otherwise, it becomes a *he said-she said* situation.)

Simply tell upper management that IT has called this matter to your attention and you would like their input on how best to handle this situation. Give them a copy of the printed *chat* material and ask them to get back to you on the course of action you should take. They may very well want to involve HR in the discussion. Then you take whatever course of action upper management and HR recommend.

By using this tactic, you avoid a power play between you and this employee.

Another option would be for you to go to HR or management and let them know the situation, without mentioning the employees name. Ask their advice in addressing this problem. You can even pose this as a theoretical questions, as in *Suppose that I learned that an employee was…etc. How should I handle it?*

Many companies have strict policies limiting the use of chat and forbidding sexually explicit communication at work.  Others treat it as a performance issue, and focus on how much work the employee is not getting done, rather than the online chat.

It appears that this employee is a married male who is using his work computer to chat about homosexual activity. That alone is not an indication that he is either suicidal or homicidal. (Contrary to stereotypes, homosexuals are less likely to commit violent crimes than the general population — not more likely.) If he makes threats or acts in a way that makes you feel unsafe, you should report it to the police.

It is not your job to keep this employees secret — but neither is it your job to expose him as a homosexual.

Many times a person will act in this manner because subconsciously, he wants to be caught and have the truth come out. If this employee continues the sexually explicit *chat* at work, we suspect that is what is going on.

Yes, your plan sounds very reasonable. The important point to keep in mind here is that as the employer, you set the terms of the termination and any severance pay…the employee does not. You also determine if he will be offered another job within the company, and if so, when. Somehow, it appears that the shoe got on the wrong foot, so to speak. This employee should not be dictating terms to you. You should be dictating terms to him. (Frankly…are you sure you want to rehire him??? He sounds like trouble.)

We will note that you are not actually firing this employee due to his background. Whatever his education is, it was good enough to get him hired. Apparently you are firing him due to poor performance in the HR generalist position. (If his performance was flawless despite his background, this would not even be an issue, would it??)

There is no law whatsoever that you have to rehire this employee after paying him severance (or even if you do not offer him severance.) There is no law regarding whom an employer can or cannot rehire — this is a matter of company policy. But frankly, if an employee informed us that he intended to take the severance pay and then come back to work for the company, we would consider that action alone enough to make him non-rehirable. It would be a very strong indication that he does not have the companys best interests at heart and is not a team player.

There is no law that you must pay severance to any employee, ever. If you do offer severance, it is under the terms of an agreement that YOU as the employer draft. You can certainly offer this employee severance, but make it clear that if he rejoins the company at any point during the next year, the amount of severance will be deducted from any earnings or commissions. In other words, if he accepts a position with the company in the next 12 months, he must repay the severance.

It is not reasonable for the employee to make any demands, much less demand that you hold his severance until he is rehired. (And it would be foolish for you to promise him a new position in writing.)

It is up to each employer to establish the standard work week for exempt employees at their place of business. The expected work week can vary from 35 to 75 hours per week — and even more for some employers. An exempt employee who does not meet the employers standards for the number of hours worked can be disciplined or terminated.

There is not a lot of data on this, but the average work week for exempt employees appears to be 45 to 55 hours per week.