Human Resource Blog

This is a gray area and as a California employer you should proceed with caution. It is completely appropriate for an employer to treat exempt and hourly employees differently. It is completely appropriate to treat employees in different jobs differently. However, when you treat two employees in the same job differently under very similar circumstances, you may be unintentionally committing illegal discrimination.

This action would be appropriate if the circumstances were different between the teams. Suppose one team of salespeople markets to the fast food industry; the other 3 market to full-service restaurants. During 2009, the fast food industry did well, while the full-service restaurant industry tanked. You could legitimately expect the fast-food sales team to meet their annual sales goals, while making an exception for the full-service sales teams. It would be appropriate to issue a reprimand to any member of the fast-food team that did not meet her goals.

However, suppose all 4 teams sell to full-service restaurants. If you issue a reprimand to the only Asian-American salesperson, or the only male sales person, while not issuing reprimands to other salespeople with similar sales deficits, that may be illegal discrimination.

In some cases, it is appropriate and acceptable for different supervisors to treat workers differently, or to have different expectations. For example, one hotel general manager may write up an employee who is out of uniform, while another may terminate the employee on the spot. However, when the employees are working very closely together on similar projects in similar conditions, the company needs to have some consistency to avoid the appearance of illegal discrimination.  

There is no legal requirement that an employee must be suspended, ever. This is a form of discipline short of termination that is often employed for severe infractions.

Each employer establishes their own disciplinary policies. Many employers like to include a disciplinary unpaid suspension as a final attempt to change an employees behavior before termination. Sometimes when written warnings alone are not effective, an employee on disciplinary suspension realizes the financial and interpersonal consequences of continuing their current behavior. It can be considered an adult time out.

However, some infractions are so severe that immediate termination without a suspension is warranted. Other employers simply never use suspensions.

If a company has a formal system of progressive discipline in place, the company should follow that system. Doing so minimizes the employees chance of collecting unemployment after being fired for misconduct. However, there is no legal requirement that a progressive discipline process must include suspension.

A different answer might apply if a union contract is in effect.

There is no hard and fast rule on when an employee should be written up. This is not a matter covered by employment law. The best practice would be to discipline the employee as soon as possible after the incident, because psychologists tell us punishment becomes less effective the longer you wait. However, sometimes the employer needs to investigate all of the circumstances of the incident, or needs time to make a considered decision on the appropriate response. At other times, the supervisor or manager may be angry. It is wiser to wait overnight or even a few days, until the manager has cooled off before taking action.

The important point is that there are at least two sides to every story. The manager should ask open-ended questions to learn what the employees side is, before responding.

In some cases an employee may commit a serious transgression that is not discovered for months or years (and in some cases, decades.) It is appropriate to take action against the employee when the transgression is discovered — no matter how long it has been. There is no statute of limitations on serious work transgressions.

Changing these employees from exempt to non-exempt is problematic. Frankly, the best practice would be to treat this as a performance problem — which is what it is. Any exempt employee who does not work the expected 50 hours per week would receive a written reprimand. If that did not solve the problem the employee would be suspended without pay and then terminated.

Presumably, you are not telling these folks when they need to work the 50 hours — just that they need to get the work done. That would mean that they need to arrange for childcare, or work during the hours when they do have childcare. The employee who has classes could work on evenings or weekends when class is not in session — even if that were Saturday night at midnight. This is a time when you may have to be a little hard-nosed to let exempt employees know they are expected to get the job done.

You should also make it clear to these employees that their poor performance will be a factor in their annual evaluations.

If you do not take this approach, you are likely to find that all your exempt employees are suddenly available only 35 or 40 hours per week.

There is really no benefit to you, to making these employees hourly. That just reinforces the bad behavior, by granting them overtime if they do work more than 40 hours per week. If an exempt employee was consistently unable to meet your expectation of 50 hours per week, it would be reasonable to demote them to an hourly position and promote another worker.

Making some employees exempt while others in the same job are non-exempt could very well be seen by the US Department of Labor as illegal discrimination. Especially if most of the female employees fall into one group, that could very well be pay discrimination under the Ledbetter Fair Pay Act. And, under that law employees can sue you for unfair pay, even 20 years later.

As the employer, it is not up to you to dictate treatment to your employees — it is up to their doctor.

Because this employee recently had surgery, it is possible that her current condition is related, or is a permanent disability.

You definitely need to sit down with this employee and have a non-threatening, calm conversation about what is going on. The conversation should focus around specific, observable actions that she has taken — not about her emotional state (or what you believe to be her emotional state.) For example, you might say: Yesterday you shouted at Tina when she was 10 minutes late returning from lunch. That seems like an extreme reaction, out of proportion to the situation. Can you help me understand whats going on? If she is noncommital, you need to ask: Are there any health factors here that could be contributing to the problem? That I should be aware of? (Also note that any health information she reveals during this conversation must be kept absolutely confidential under ADA. It cannot be shared, even with other members of the management team. )

Since she has recently had surgery, what you see as *emotional problems* may be related to medication that she is taking. Or, if she is in chronic pain, that often takes a toll on an employees good humor. Or, it could be a psychological issue, as you claim.

Note that many psychological conditions including depression are serious health conditions under FMLA. So this employee may be entitled to additional time off, to address these issues. That could include weeks away from work to recoup or it could include intermittent FMLA for therapists appointments, etc.

If the employee has a permanent disability that is causing these emotional fluctuations, that would be covered under ADA. You would be obligated to make reasonable accommodations for the employees disability.

Based on your conversation with the employee, you can suggest that she address this issue by seeing her family doctor or a therapist. However, you usually cannot make employment contingent upon such treatment. (That begins to look like discrimination based on a perceived disability, which is illegal under federal law.)  You should offer FMLA or a reasonable accommodation under ADA, if appropriate.

If the employee is not entitled to FMLA or covered under ADA, you need to address this as an objective performance issue. You could suspend the employee for 3 days or a week, based upon her performance issues, and let her know in no uncertain terms that you expect better performance when she returns. Also let her know that further outbursts will result in termination. That is the appropriate way to handle a suspension — as a disciplinary action, not as blackmail in a power play to force the employee to get the type of health care that you think is best.

If you simply terminate the employee without exploring the FMLA and ADA options, you will likely find yourself on the wrong end of a discrimination suit, or a wrongful termination suit, or both.

 You need to focus on objective, observable workplace behavior, not what you perceive as the underlying cause — because you are not her doctor and do not know what the underlying cause is.

This is a complex situation. Feel free to post any additional questions you may have.