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Can a employee use kincare for a live in boyfriends child who lives with them 50% of the time for the sick care of the child?

The most notable legislation regarding kincare is California’s requirement that employees be allowed to use up to half of their accrued sick leave benefits to care for a sick family member. A family member includes a child, parent or spouse. “Child” is defined to mean a biological, adopted or foster child, stepchild, legal ward, child of a domestic partner, or a child in loco parentis of the employee.

So, an employee requesting leave to care for the child of the employee’s boyfriend who lives with them half the time would generally not be covered under the California Kincare legislation.

January 27th, 2015, 11:52 AM |  Posted in: Labor Laws |
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Concerns about exempt staff working non-exempt second positions

What precautions should be taken when allowing exempt staff to also have non-exempt second positions within the same non-profit company? If it is a normally non-exempt position? If it is a normally an exempt position?

Allowing an exempt employee to work a second job within the same company is permissible; however, certain precautions must be taken to ensure provisions of the federal Fair Labor Standards Act (FLSA) are not violated.

A common misunderstanding with allowing an employee to work a second job is that the employee will automatically retain his FLSA classification. This is not always true.

To be exempt, an employee must pass all three “tests” as described by the FLSA; salary level, salary basis, and duties. The salary level and basis tests require that exempt employees receive at least $23,600 per year ($455 per week) as a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. Exempt job duties are generally categorized as executive, professional or administrative.

Under the FLSA, a worker can only have one classification, exempt or non-exempt. The classification is based on the worker’s primary job duties. But when a worker has two jobs within the same company the primary duties are actually a combination of both jobs.

Employees who normally spend more than 50% of their time performing exempt work will satisfy the primary duty requirement. It must be determined if the combined responsibilities of the two jobs would still permit the exempt classification or if reclassification is necessary.

If the combined responsibilities still warrant exempt classification, providing additional compensation to the employee for the second job is permissible without losing the exempt status or violating the salary basis requirement for the employee’s primary job. This additional compensation can be paid on any basis, including a flat sum, bonus payment, straight-time hourly amount, time and one-half, or any other basis, including paid time-off.

If it’s determined the combined responsibilities don’t satisfy exempt status requirements, the employee must be re-classified as non-exempt for both positions and subject to overtime regulations per the FLSA. Overtime rates must be paid for all hours worked over 40 in any given workweek. The overtime rate would be either the weighted average of the two wages or the rate of the job in which the overtime was earned. Keep in mind that some states have daily overtime laws as well as set requirements for calculating overtime rates for employees with two jobs.

It’s important to clearly document whichever decision is made. Hope this helps!

January 26th, 2015, 2:56 PM |  Posted in: Compensation, Labor Laws |
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Bottled water storage

Can we use water coolers (spout type) to put ice and bottled water in? We don’t use the water coolers for bulk water. We have been using them as an ice chest to keep the bottled water cold.

The Occupational Safety and Health Administration (OSHA) establishes standards for employers to provide their employees with safe and healthful working conditions.

Under OSHA’s Safety and Health Standards, water that meets the standard for drinking purposes must be provided at all permanent places of employment. Portable containers carrying water must be appropriately marked, tightly closed, and have a tap for dispensing the water.

There is no regulation restricting the use of water coolers as ice chests for the purpose of keeping bottled water cold. However, if the water cooler is eventually used as a portable drinking water dispenser the above standards apply and sanitary conditions must be maintained.

January 26th, 2015, 1:41 PM |  Posted in: Workplace Health & Safety |
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Prior Notice for Mandatory Overtime

In the state of Indiana, is there a required amount of time like a 24 hour notice that must be given to employees for mandatory overtime?

There is no current law in Indiana requiring advanced notice to employees of mandatory overtime. In Indiana, as in all states, employers are subject to the federal Fair Labor Standards Act (FLSA). The FLSA establishes guidelines for minimum wage and overtime provisions.

Under the act, employees are either non-exempt or exempt from overtime provisions. Non-exempt workers must be paid at least minimum wage for every hour worked and 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. Employees classified as exempt from overtime regulations receive a fixed predetermined salary per workweek regardless of the quantity or quality of work performed.

Considering the nature of the work performed, mandating overtime with little to no notice may be inevitable; however, employers should attempt to inform employees of overtime needs in advance when feasible to avoid low employee morale and employee fatigue.

January 26th, 2015, 1:13 PM |  Posted in: Attendance Management |
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Employee not released by doctor

I had an employee that had a mental breakdown that has been under doctors care for the past few months. The employee has been trying to get released from the doctor. All of our employees are part time except management. What would you advise?

Assuming the employee is not eligible for leave under the Family and Medical Leave Act (FMLA) since most part time employees don’t meet the eligibility criteria, you must consider if his medical condition is considered a protected disability under the Americans with Disabilities Act (ADA).

Private employers, state or local governments, labor unions, and employment agencies with at least 15 employees must comply with the ADA.

The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities or a person who has a history or record of such an impairment. For an impairment to be a legal disability, it must be long term. The definition is intended to be interpreted broadly to cover a wide range of individuals. Common protected medical conditions include diabetes, cancer and post-traumatic stress disorder.

Though the ADA doesn’t explicitly entitle employees to time away from work, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. Depending upon the circumstances, time off from work may be considered a reasonable accommodation.

Employers aren’t required to provide an accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources. If a particular accommodation, such as a leave of absence, would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. For example, if a six month leave of absence would cause significant hardship, maybe consider offering a two month leave of absence.

It seems as though the employee has been given some time off to deal with his condition already. Even so, it’s best to have a discussion with the employee and address specifically when he expects to return to work. Inform him that you’ve provided (x) amount of time to take care of his situation, that you’re aware he’s attempting to return to work, and that you cannot hold his position much longer.

Remember, even though the ADA requires reasonable accommodations such as a leave to be considered, it doesn’t mandate that employers provide never ending leaves of absence. Consider how much longer you would be willing to hold his position. Provide the employee a set date by which he must return to work or his employment will be terminated.

Don’t allow the employee to return to work without the release from his doctor. An employer has the right to request a fitness-for-duty release any time the employer has reason to question the worker’s health status. Ensuring the employee will not pose a danger to himself or others is important.

Document all conversations with the employee. Many employers choose to send a letter to the employee confirming the return to work deadline. If you decide to send a letter, make sure you address the time you’ve already given to the employee and the deadline for returning to work. Don’t mention the specific illness. Only mention the time away from work as the issue.

If the employee’s condition is not covered under the ADA or there are no possible reasonable accommodations then there is no requirement to continue the individual’s employment. Be careful in concluding that a reasonable accommodation is impossible. You may have to prove your decision in court one day.

January 23rd, 2015, 1:37 PM |  Posted in: Attendance Management, Labor Laws |
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