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Mar23

Paying Employees during State of Emergency

If the state of Connecticut declares a state of emergency due to bad weather, is the company required to pay those employees who were scheduled to work?

Though Connecticut does have its own wage and hour law, it doesn’t address whether an employer is required to pay its employees during state of emergencies. Thus, we defer to the federal Fair Labor Standards Act (FLSA).

Under the FLSA, employees are either non-exempt or exempt.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements. Non-exempt employees need not be paid for time not actually worked. So, if a company is closed due to inclement weather or an employee chooses not to report to work due to inclement weather then there is no requirement to provide compensation to a non-exempt employee.

Conversely, exempt employees receive a fixed predetermined salary for any workweek during which work is performed. Deductions from an exempt employee’s salary for absences occasioned by the employer violate the salary basis test for exempt status. An employer closing the business due to inclement weather would be an absence “occasioned by the employer.” Thus, an employer cannot deduct the day from an exempt employee’s salary. However, if the business is open and an exempt employee chooses not to report to work then a full day deduction for the absence is permitted as long as absolutely no work is performed that day.

Non-exempt and exempt employees can be allowed or required to use their PTO accruals during inclement weather. This is generally up to the employer to decide.

March 23rd, 2017, 10:26 AM |  Posted in: Compensation |
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Mar23

90 Days of Service

If our policy states 90 days of service to qualify for vacation or PTO does that typically mean 90 calendar days or 90 business days?

Usually, a 90 day waiting period refers to 90 calendar days. However, since paid time off benefits are not regulated, employers are generally free to adopt such policies at their discretion. So, an employer could use 90 business days. But, if doing so the policy should clearly state “business days”.

March 23rd, 2017, 10:17 AM |  Posted in: Benefits |
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Mar20

Working under the Influence of Alcohol

Can I terminate someone who comes to work under the influence of alcohol?

Generally, employers are permitted to terminate an employee who comes to work under the influence of alcohol. However, it’s best to consider the situation in its entirety prior to terminating the employee.

When an employee is suspected of being under the influence of alcohol, the employee should be counseled regarding any policy violations that may have occurred. If there is reason to suspect an alcohol dependency or if the employee informs you he/she is an alcoholic, it’s best to consider other options besides immediate termination, specifically a leave of absence under the federal Family & Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA).

The FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including to care for one’s own serious health condition.

An eligible employee is one who works for a covered employer, has worked for the employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles.

The use of alcohol isn’t a FMLA-qualifying event; however, the treatment for alcoholism is covered.

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

Alcoholism is a common covered disability under the ADA. Thus, the employee may be entitled to a reasonable accommodation under the law if he is qualified and able to perform the essential functions of the job. A common reasonable accommodation for alcoholics is a short term leave for treatment.

Though neither the FMLA nor ADA require employers to allow an employee to be under the influence of alcohol in the workplace, both laws entitle employees to take leave for medical treatment. Thus, it’s best to consider if a leave of absence may be beneficial in this situation.

Also, even if you offer the employee a leave of absence you cannot force the employee to seek medical treatment. But, you may offer the employee a choice between seeking treatment and being terminated for violation of company policy/poor performance/misconduct, referred to as a last chance agreement.

A last chance agreement should clearly state what is expected of the employee. For example, that the employee is being given leave to participate in a rehabilitation program, the employee will be subject to alcohol testing and failure to complete the program or further misconduct will warrant termination. The employee can be required to show proof of his completion of a rehabilitation program as part of the last chance agreement.

Just to be clear, federal law doesn’t prohibit an employer from terminating an employee who shows to work under the influence of alcohol. But, whether terminating the employee outright is the appropriate step depends on the situation. Disciplinary actions should be based on the employee’s performance or any policy violations, not the employee’s specific condition, if there is one.

HTH!

March 20th, 2017, 9:01 PM |  Posted in: Labor Laws, Termination |
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Mar20

FMLA/NJFLA

We have an employee who needs to take off intermittent time to care for the serious medical condition of her parent. She is eligible for both the FMLA and the NJFLA. Can they run concurrently? Any reason to do so? Any reason not to do so? Should she be signing the paperwork for both regulations?

Both the federal Family & Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) entitle eligible employees of covered employers of up to 12 workweeks of unpaid leave in a 12-month period (24-months for NJFLA) for certain family and medical reasons.

Though the laws are fairly similar, there are notable differences. But, since you state the employee qualifies for leave under both laws, we won’t get into the details.

When an employee needs leave for both a FMLA- and NJFLA-qualifying event, the leave times should run concurrently. Reason being, when leave is provided by both statutes, the employee is still entitled to only up to 12 weeks of leave in a 12-month period to care for a family member. If the leave times didn’t run concurrently, the employee would essentially be given double the amount of leave time then what is required by law.

Just to be clear, if an employee’s situation qualifies for FMLA leave but not NJFLA, then the employee is entitled to the full 12-week allotment under the FMLA and is still eligible to take additional leave for a NJFLA-qualifying event at a later date.

The employee should be provided the appropriate paperwork under both regulations and a clear statement that her leave time under both the FMLA and NJFLA will run concurrently should be included in the designation notice.

HTH!

March 20th, 2017, 8:01 PM |  Posted in: Labor Laws |
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Mar20

Vacation Awarded as Hiring Incentive

We have several employees that negotiated vacation during their hiring process. For example, a Pharmacist was given 4 weeks vacation as part of on-boarding. What kind of language do we put in our handbook or policy to protect the company from paying out the four weeks if they leave in the first year? Is it legal to put a stipulation that it must be paid back if they do not complete a full year of employment?

Vacation time is not regulated by federal law but some states have adopted legislation on the matter. Most of these states simply require employers to abide by the terms of their own policies and practices. However, some states consider earned vacation time as earned wages and prohibit employers from requiring employees to forfeit or payback earned unused vacation time. So, it’s important to be aware of any applicable state law regarding vacation time. Feel free to respond in the comments section with the state in question. We can then research any applicable laws.

Absent state law or employment contract, employers are generally free to adopt vacation policies at their discretion including one that requires employees to payback vacation time prior to completing a full year of employment.

It’s worth noting that such a policy is not all that common and may backfire on you. With such a unique policy it would be best to notify potential new hires before they accept a job offer. In doing so, you may actually lose good candidates. Further, such a policy will most likely decrease employee morale since employees will be hesitant to use their vacation time for fear of having to pay it back. Plus, what happens if a good employee has a valid reason for leaving i.e. becomes disabled or needs to move? Is it really fair that a hardworking, dedicated employee now has to repay you any vacation time he’s taken?

The most common reason for adopting a policy like the one you propose is to deter employee turnover, which is a legitimate motive. But, there are other ways to accomplish this.

Make employees feel appreciated. Whether this is accomplished through annual salary increases, great benefits, or daily/monthly/annual acknowledgements, showing employees that you care about them goes a long way in reducing turnover.

Also, when it comes to vacation benefits, encouraging your employees to use them and take the time off to relax is much more beneficial than threatening to make them repay any used time if they leave the company within a year. You may end up with employees who are too afraid to use any time within their first year; thus, creating a resentful and exhausted workforce.

It’s far more common to not payout any unused earned vacation at the time of an employee’s separation or to place stipulations on the payout of such time. For example, only allow the payout of unused earned vacation time if an employee provides two weeks resignation notice and employee who are terminated automatically forfeit their unused earned time. This type of policy encourages employees to follow the resignation procedures and discourages misconduct.

Lastly, though employers may be allowed to require employees to payback certain vacation time, there are compensation regulations set forth under the federal Fair Labor Standards Act (FLSA) and possibly a similar state law that must be followed. Basically, the FLSA imposes restrictions on the types of deductions permitted from employees’ paychecks. Please feel free to review our previous posts for more information on this.

HTH!

March 20th, 2017, 7:34 PM |  Posted in: Benefits, Compensation |
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