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Nov19

Discrimination

We are a small company of 25 employees. The owner is exempt salary. We have four other exempt salary positions. Each one is set to work 60 hours a week. The problem is one of the exempt positions is held by the owners wife with the title VP / CFO. She is allowed to come and go as she pleases and only works between 15-20 hours and (she gets her full salary and benefits) a week. The other 3 exempt positions get told if they do not work their 60 hours their pay will be docked and are told if they complain about having to work more than 60 hours their salaries will be cut down. Is this discrimination towards the other exempt employees? And does this constitute a hostile work environment? Is this legal or is there a valid complaint?

Though the situation seems unfair and will no doubt cause some workers to resent the company and its representatives, it doesn’t reach the level of illegal discrimination or harassment based on the information provided.

Discrimination in the workplace occurs when an employee or a group of employees are treated less favorably due to a protected characteristic. Under federal laws, protected characteristics include age (40 years or older), disability, genetic information, national origin, race/color, religion, and sex (including pregnancy). State discrimination laws may offer more protections.

Hostile work environment is a form of harassment. Harassment is unwelcome conduct that is based on one or more of the aforementioned protected characteristics. To be unlawful, harassment must create a work environment that would be intimidating, hostile, or offensive to a reasonable person.

Again, based on the information provided, the situation doesn’t appear to violate discrimination and harassment laws at the federal level. But, there are still concerns worth noting.

The federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime, allowable deductions from pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, exempt employees must receive their predetermined salary for any workweek during which work is performed without regard to the quantity or quality of work performed.

Deductions from exempt employees’ salaries are permitted only in limited circumstances including:

So, docking an exempt employee’s pay solely because he didn’t meet a specified number of hours in a week violates the FLSA’s criteria for exempt status. Be careful of such violations. If an employee files a complaint and is found to be misclassified, he may be entitled to back pay including overtime wages.

An employer is able to require employees, exempt or non-exempt, to use PTO accruals to cover any hours missed from the workweek. But, if an exempt employee has exhausted his accruals his pay cannot be reduced unless doing so is in accordance with the FLSA rules above.

The average full time employee is scheduled to work 40 hours a week. A 60 hour workweek is a lot (though it’s typical in some industries). Requiring employees to work a 60 hour workweek in order to get their full salaries and benefits while an executive is permitted to work less time and still keep her full salary and benefits will undoubtedly create resentment, low morale, reduced productivity and high turnover. All of which negatively impact the company’s bottom line.

Executives are often given more leniencies with their schedules considering they frequently work from home, while traveling and on the weekends. But, if the situation is affecting business operations then it should be appropriately addressed.

HTH!

November 19th, 2017, 2:58 PM |  Posted in: Workplace Management |
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Nov13

Bathroom Usage

We have two sets of bathrooms in our office. One of the bathrooms is in our office while the other set is closer to where our line staff works. For some reason the line staff like to come in to the main office to use that bathroom. Can we prohibit them from using the office bathroom and tell them they must use the other bathroom? The bathroom in the office gets crowded and by the afternoon it’s filthy from everyone using it.

 

The federal Occupation Safety and Health Administration (OSHA) establishes standards to ensure safe and healthful working conditions. Just about all private employers are covered under the federal OSHA while many public employees are covered under OSHA approved state programs.

OSHA requires restrooms to be readily available when employees need to use them. Employers may impose restrictions on employee access to restrooms, like requiring employees to use specified restrooms or requiring a key for access to the restroom. However, the restrictions must be reasonable and may not cause extended delays. “Reasonable” is not defined by OSHA. Thus, employers must carefully consider if bathroom restrictions prevent employees from promptly using the facilities when needed.

In this case, consider the distance employees must walk to access the restrooms near the line staff work stations and the restrooms in the office. Is one restroom closer than the other for them? Is the restroom that you say is closer to the line staff sufficient for the number of employees who need to use them? Also, consider if there is a problem with the other restroom. Do the toilets back up often? Is it clean? Are there any safety concerns?

It’s advisable to determine why the line employees prefer the restroom in the office. There may legitimate problems that need to be addressed.

HTH!

Nov13

PTO Giveaway in Texas

We are in Texas and usually have a “free stuff Friday” every now and then for our employees where they can enter into a drawing for usually gift cards or items like that. Is it legal to offer company PTO in these give aways?

First off, kudos to you for having such an awesome event for your employees.

There is nothing illegal about offering a day of PTO as an award to employees. But, there are few things to consider.

Like with any giveaway, make sure it’s fair and that it’s actually perceived as being fair. Meaning, even if you have a truly random selection process but the same employee is still winning every Friday then consider adopting a rule that an employee can only win one time a month.

Also like with any giveaway, consider the employees eligible to participate. Allowing administrators (i.e. executives, directors) to partake in the freebies may cause some resentment if they end up winning.

Lastly, if you choose to use a day of PTO as an award then make sure you have any necessary guidelines figured out beforehand. For example, does the day have to be used within a certain timeframe, will the day be subject to management approval etc…

HTH!

November 13th, 2017, 10:11 AM |  Posted in: Benefits |
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Nov13

Paid Sick Time in California

In California, is paid sick time considered ‘earned income’ like accrued vacation time? Does unused sick time have to be paid upon termination of employment?

Employees who work in California for 30 or more days within a year from the beginning of their employment are entitled to paid sick time. Employees earn at least one hour of paid sick time for every 30 hours worked.

Though paid sick time is accrued, it’s not considered earned wages like vacation time under California law. Unused sick time is not required to be paid out upon separation of employment. But, if an employee leaves his/her job and is rehired within one year of separation, the employer must reinstate any previously accrued and unused paid sick time.

Keep in mind employers are required to post a notice in the workplace informing employees of their rights under the paid sick leave law.

November 13th, 2017, 9:46 AM |  Posted in: Benefits, Labor Laws |
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Nov09

Work Schedule Change under FMLA

Is an employer required to change an employee’s schedule to care for a child under FMLA? The employee’s doctor completed medical certification stating that the employee is required to work a 9-6 pm shift Monday-Friday with weekends off.

The federal Family & Medical Leave Act (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 a qualified family member with a serious health condition.

FMLA leave can be taken in one continuous block or intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is leave taken in separate blocks of time while a reduced schedule leave is a temporary change in the employee’s schedule.

In order for intermittent leave or leave on a reduced schedule to be taken to care for a covered family member with a serious health condition, there must be a medical need for the leave and such medical need is best accommodated by intermittent or reduced schedule leave. Leave may be taken when medically necessary for the treatment, recovery and psychological comfort from a covered family member’s serious health condition. However, employees are expected to plan treatments in a manner that doesn’t unduly disrupt business operation (i.e. they must make a reasonable attempt to schedule the treatments during non working hours).

Whether the employee’s request to change his schedule must be complied with under the FMLA depends on the circumstances. Let’s assume the employee is covered under the FMLA and the employee’s child has a serious health condition qualifying the employee for FMLA leave. Then, it must then be determined if the doctor’s recommended schedule is in fact medically necessary to care for the child. It may very well be. The medical certification from the child’s doctor must state that the employee’s intermittent or reduced leave schedule is necessary for the care of the child and the expected duration of the necessary leave. If not, the appropriate employer representative should contact the doctor for clarity.

HTH!

November 9th, 2017, 2:43 PM |  Posted in: Labor Laws |
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