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Tracking Hours for Salaried Exempt Employees

I know a salaried exempt worker can be required to fill out timesheets to record minimum hours (in this case 42.5) but 2 questions 1. can this only be required of one employee (i.e. if two have the same title only one is being held to the 42.5 hour minimum while the other is not-this is being recorded by timesheet) 2. if there is no written policy for the 42.5 hours and the employee does not adhere to it, can he/she be fired?

Under the federal Fair Labor Standards Act (FLSA), employers are required to retain certain records for non-exempt employees specifically the total number of hours worked each day and each workweek. Though this mandate doesn’t apply to exempt employees, employers are permitted to record and track exempt employees’ hours worked.

It’s important to mention that even though it’s acceptable to track exempt employees’ hours worked, it’s often not acceptable to deduct from their salary for hours not worked. Please feel free to review our previous posts on permissible deductions from an exempt employee’s salary.

Employers may require some employees to work different hours than others in the same job title/position. Just like, employers are able to require only some employees to adhere to a specified time keeping system. However, make certain there is a justifiable business reason for doing so. Otherwise, there is an increased risk for a discrimination claim.

For example, there is one employee whose performance is not up to standard or seems to be coming in late or leaving early too often. So, there is concern she is not working the required number of hours; thus, a more stringent time keeping system is required of this one employee to better track her time worked. This is acceptable as a method of discipline.

Absent an employment contract or collective bargaining agreement, most employees are considered to be at-will. Meaning, either the employer or employee can terminate the relationship with or without cause.

Of course, an employer cannot terminate an employee based on personal characteristics as defined under both federal and state laws. It’s illegal for an employer to discriminate against an employee based on sex (including pregnancy and childbirth), sexual orientation or identity, genetic information, disability, age (over 40), national origin, race, color, religion, or citizenship status. Furthermore, employees cannot be terminated for participating in union activity or for refusing to participate in any illegal activity.

There is no law that requires every single company policy to be in writing. So, if you’ve informed the employee that she is required to work 42.5 hours per week then you are within your rights to hold the employee accountable for not adhering to your directives.

Prior to terminating the employee, it’s advisable to consider adopting a practice of progressive discipline. Progressive discipline provides a graduated range of responses to employee misconduct. Offenders may receive a verbal warning at first, then a written warning for subsequent violations, then suspension, and ultimately termination. Progressive discipline ensures employees are treated fairly and consistently; thus, reducing the risk of a wrongful termination claim. Additionally, it may reduce the likelihood of the employee qualifying for unemployment benefits since there is a record of misconduct and she was warned continued infractions would result in termination.


Elderly Former Worker

We have an insurance producer who is still coming to the office but his memory is getting progressively worse. He doesn’t remember that he has retired so he keeps coming to the office. We have contacted the family. We have told him over and over he has retired. How do we make him stop coming in?

It sounds like you’re being kind and supportive to this individual. But, you have a business to run. Clearly the individual is suffering from memory loss, maybe even dementia or a similar medical condition.

Unfortunately, discussing the situation with the individual himself seems to be pointless. Thus, it’s important to get through to the family.

It’s surprising that even after you contacted the family they haven’t intervened to ensure the individual is better supervised. Did you clearly inform them that his coming to the office is no longer permitted and he’s causing an uncomfortable environment? It’s common for managers/employers in this situation to be subtle with the family to avoid hurting feelings or coming across too harsh. This is understandable but it’s important to make your expectations clear with the family. Be compassionate but be direct.

You can also express concerns for the individual’s safety. If he acts this way with you he’s probably acting in a similar manner with others. Also, how is the individual getting to your business? If he’s driving himself then this should be another concern for the family.

A final resort could be calling the police. Inform them of the situation and your continued concern for the individual’s safety and the well-being of your staff. The police may contact the individual’s family directly prompting the family to take the matter more seriously. The police may even detain the individual for trespassing if you wanted to press charges. Though this is a drastic measure, it may be the only way to stop the situation from occurring again. Just make sure you clearly warn the family of your intentions to call the police the next time the individual shows up.

Again, the best course of action is to really get through to the family and hope they will better handle the situation. Best of luck.

November 20th, 2015, 1:43 PM |  Posted in: Human Resources Management |
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Protecting the Employer after a Termination

If we terminate an employee, how do we keep them from spreading negative or proprietary information about our company or posting the information somewhere? This happened before and it took an attorney letter and a lot of explaining to quell the issue.

Employee retaliation or even sabotage post termination is all too common. There are many platforms for disgruntled employees to convey their disdain for their former employers often at a significant cost to the employer.

The best prevention is fairly simple: Treat your employees with respect and dignity and they’ll be more inclined to do the same to you. Of course, this is easier said than done.

Showing employees respect starts way before a termination occurs. Establishing clear expectations, providing employees with the appropriate information and tools to do their jobs well, providing constructive feedback, and showing appreciation to employees is essential in fostering a trusting and respectful workforce.

Remember, you didn’t hire an employee to watch them fail. A genuine approach to improving an employee’s substandard performance and a sincere interest in an employee’s well-being and conveys respect for them.

Employees who feel the need to spread negative rumors about their former employers often feel they were treated unfairly or aloofly both on the job and at termination.

So, consider how you’re terminating employees.

How is the decision to terminate an employee made? Is progressive discipline followed? Are employees warned of poor performance? Are corrective action steps collaboratively discussed?

Even if so, terminations sometimes are just inevitable.

A good manager can terminate an employee in a kind and compassionate way. A great manager will have shown the employee kindness and respect throughout their employment making the employee less likely to retaliate against the employer after termination.

The location of the meeting is more important than most managers think. Meet with the employee face to face in a private room where he will feel the most comfortable. There is no need to have a dozen witnesses; anyone in the room should have an absolute need to be there.

Avoid pleasantries or unrelated conversations at the start of the meeting. These will only cause the employee to be uncomfortable or feel foolish after he finds out the reason for the meeting.

Explain that the employee is being terminated as of a specified date and communicate the reason for the termination. Be direct and to the point but not cold and withdrawn. Avoid arguing with the employee and dwelling on his mistakes. Be clear the decision is final. Short and sweet is best but don’t minimize the situation or the employee’s reaction.

Explain how the employee will receive his final paycheck, severance pay, and the benefits continuation process. The employee may be confused as to what to do next so help him move forward specifically when he should leave, when/how he can collect his personal belongings, how communicating the decision to coworkers/clients will be handled, or anything else the employee may need to know to ease the transition.

Remember the employee may be angry, either at you or himself or both, and he may feel embarrassed. Being considerate of his emotions and assisting the employee will help discourage these emotions from turning into hatred and scorn.

Now, protecting proprietary information is handled differently.

A non-disclosure agreement is fairly common for employees that have access to confidential and proprietary information. Such agreements should be given to employees at the time of hire or at the time they become privy to confidential information. Non-disclosure agreements should define the information deemed confidential and the penalties for breach of the contract. You may consider specifically stating what constitutes disclosure i.e. verbal, social media. Sometimes seeing what is prohibited in writing is enough to deter employees. Agreements should be signed and dated by employees.

Non-disclosure agreements relay the importance of keeping confidential information as just that, confidential. Employees are less likely to disclose such information if they know they’ll be accountable for doing so.

It’s perfectly acceptable to remind employees of non-disclosure agreements at the time of termination. You could even include a copy of their signed agreement in their termination package, if one is provided. If there is a breach of contract then it’s up to the employer to follow through on enforcing the penalties.



Vacation Policy Transition

I want to switch from anniversary vacation renewal to annual (Jan 1 2016) renewal. I have read all the other answers and I am still struggling with this switch over. I want to make it happen for the new year. I have employees that have start dates in every month expect for 4, 5 and12. Keeping up with their hours and renewals is becoming a full time job. I want to be fair to everyone and make my job a little easier all at the same time. Please help with this calculation. Thanks.

Since you’ve read our previous posts I’ll try not to be redundant!

On January 1, 2016 employees will receive a one-time adjustment in their vacation pay which will be prorated based on their anniversary date.

The prorated vacation amount is based on the length of time between their 2016 anniversary date and December 31, 2016. This way the employees don’t lose any vacation time. The time is just awarded in January rather than later in the year on their anniversary date.

Let’s say employees receive 2 weeks of vacation per year. This calculates to 80 hours of vacation time for employees who work 8 hours a day, five days a week. Divide total number of vacation hours (80) by number of weeks in a year (52) = 1.538 hours of vacation earned per week.

Sarah’s anniversary date is June 2nd. On June 2, 2015, she was awarded 2 weeks or 80 hours of vacation to cover her until June 1, 2016. Now, we need to calculate the amount of time she would earn from June 2, 2016 to December 31, 2016 which is 30 weeks.

Hours of vacation earned per week (1.538) x weeks of vacation entitlement (30) = 46.14 hours of vacation.

So, Sarah would receive 46.14 hours of vacation on January 1, 2016 which, in addition to any vacation hours she currently has, will cover her until December 31, 2016. Then on January 1, 2017 she will receive her full 80 hours of vacation time.

The same calculation can be applied with any date.

John’s anniversary date is on October 6th. He just received 80 hours of vacation on October 6, 2015 to cover him until October 5, 2016. Now, we need to calculate the amount of vacation time he would earn from October 6, 2016 to December 31, 2016 which is12 weeks.

Hours of vacation earned per week (1.538) x weeks of vacation entitlement (12) = 18.46 hours of vacation.

So, John would receive 18.46 hours of vacation on January 1, 2016 which, in addition to any vacation hours he currently has, will cover him until December 31, 2016. Then on January 1, 2017 he will receive his full 80 hours of vacation time.

The calculations can be overwhelming; however, once completed the administration of an annual vacation policy is less burdensome. Before the transition, make sure you give employees ample notice of the policy change, preferably in writing. Be ready to address a lot of concerns from employees.

Feel free to post any questions in the comments section. HTH!

November 17th, 2015, 12:26 PM |  Posted in: Benefits |
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Termination of Employment

I have an employee who says she has a pinched nerve and is under a Doctor’s care. She has been off of work nearly two weeks. I have requested a copy of the doctor’s excuse 3 times and she has not produced it yet. She has stated she is not sure when the doctor will release her. Are we obligated to keep her job open for her?

There are two federal laws that must be considered prior to terminating the employee in question, the FMLA and ADA.

The federal Family and Medical Leave Act (FMLA) provides qualified employees of covered employers up to 12 workweeks of unpaid, job protected leave for specified family and medical reasons, including to care for one’s own serious health condition.

Employees are eligible to take FMLA leave if they have worked for the employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves, in part:
• any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
• any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

So, if the employee meets the above criteria she’s entitled to FMLA leave. The proper documentation must be provided to the employee and she must return it in a specified time frame. For more detailed information on this please feel free to review our other posts or ask a question in the comments section.

The second law to consider is the Americans with Disabilities Act (ADA). Private employers, state or local governments, labor unions, and employment agencies with at least fifteen employees must comply with the ADA.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The individual must be able to perform the essential functions of the position with or without reasonable accommodation to be protected under the ADA.

The ADA doesn’t provide an all-inclusive list of disabilities that constitute a covered disability. Thus, employers must engage in an interactive dialogue with employees to determine whether a medical condition is a covered disability and, if so, reasonable accommodations that can assist the employee in performing work duties. Keep in mind, the definition of a serious health condition under the FMLA differs than the definition of a disability under the ADA.

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. A short time off from work may be considered a reasonable accommodation.

An employer isn’t required to provide a reasonable 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.

So, assuming the employee’s medical condition qualifies as a protected disability under the ADA, consider offering him a short leave. Usually, a short leave is 2-3 weeks.

Inform the employee that you cannot continue his employment unless the appropriate medical documentation is received. Since you’ve already requested this information verbally, put this request in writing. State that unless you receive the required documentation by a specified date the employee will be terminated.

Make sure to document any conversations with the employee regarding the matter.

Even though the employee has already been away from work for two weeks, it’s important to attempt to determine if a reasonable accommodation under the ADA is an option. Making a clear good natured attempt to offer the employee a reasonable accommodation will reduce the likelihood of the employee claiming wrongful termination.

It’s also important to consider any past practice of offering time off and requesting documentation for such to other similarly situated employees. If another employee was awarded time off due to medical issues and was not required to provide documentation (or given a long time to do so), the same benefit should be offered to this employee. Ensuring equitable treatment of employees and showing a consistent practice is a good defense to a wrongful termination claim.

November 17th, 2015, 9:40 AM |  Posted in: Labor Laws, Termination |
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