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Overtime pay

Are managers on hourly pay entitled to overtime in Florida?

Employers in Florida are subject to the federal Fair Labor Standards Act (FLSA). Under the FLSA, employees are classified as either non-exempt or exempt. Non-exempt means that an employee is subject to the overtime and minimum wage requirements prescribed by the FLSA. Conversely, exempt employees are excluded from such provisions.

Hourly paid or salaried are terms referring to payment methods. Non-exempt employees are paid per hour for each and every hour worked. Exempt employees receive a fixed predetermined salary per workweek. Many managers are considered exempt; however, classification is not based on job titles. It’s based on the employee’s job responsibilities.

To be exempt, an employee must pass all three “tests”, salary level, salary basis, and duties, as outlined by the FLSA.

The salary level test: Employees who are paid less than $23,600 per year ($455 per week) are nonexempt.

The salary basis test: An exempt employee must receive a regular, predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced based on variations in the employee’s quantity or quality of work. Aside from a few exceptions, an employee must receive the full salary for any workweek during which the employee performs any work, regardless of the number of days or hours worked.

The duties test: An employee who meets the salary level and salary basis tests is exempt only if he/she also performs exempt job duties. The actual tasks of the job are to be evaluated, not the job title. There are three typical categories of exempt job duties titled executive, professional, and administrative.

Job duties are exempt “executive” job duties if the employee regularly supervises two or more other employees, has management as the primary duty of the position, and has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

“Professionally” exempt work is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Advanced degrees are the most common measure of this but are not absolutely necessary if an employee has attained a similar level of advanced education through other means and performs essentially the same kind of work as similar employees who do have advanced degrees.

“Administratively” exempt employees provide support to the operational or production employees and have a major impact on the overall business. An administratively exempt employee has the authority to create or interpret company policies, has responsibilities that directly relate to the overall business operation, has the decision making ability to make significant financial impacts, and has the authority to deviate from company policy without prior approval.

It’s always safer to classify an employee as non-exempt. Misclassifying employees as exempt may lead to FLSA violations which can be very costly.

So, a non-exempt hourly paid manager is entitled to overtime wages.

April 24th, 2015, 12:18 PM |  Posted in: Compensation, Labor Laws |
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Background Checks

A guy at my company put in his 2 week notice. I overheard him saying he made up a fake company and references. I called all 4 of his references before we hired him. We did a criminal background and SSN check all came up good.Is there any way to get an employment history on someone besides the one they gave? I’m somewhat new to this and need a little guidance.

A thorough pre-employment background check is just as important as comprehensive interview process. Once you finally find that great candidate it’s critical to make sure he’s not all smoke and mirrors.

Prior to initiating the background check (really even prior to interviewing the candidate), the candidate should complete an employment application. The employment application should require the candidate to provide his education information, professional credentials, employment history and references, at least. Once signed, the candidate is affirming the information is true and accurate.

The background check including employment verification and references should be based on the information provided on the employment application not the candidate’s resume. Candidates are more likely to lie on their resumes than on actual applications.

There are several possible components to a background check: SSN verification, sex offender registry, education verification, professional licensure verification, employment verification, personal reference checks, credit checks, drug test, criminal background check and driving records. Not all of these components are acceptable to check on every employee. Thus, it’s important to consider the job responsibilities prior to deciding which checks must be completed.

Thoroughly verifying the candidate’s employment history and checking references can provide valuable insight to the individual’s skills, behavior and integrity.

Most candidates provide their previous employer’s main number with an extension of their previous supervisor. This is a good indication that the company is legitimate. So, if you see just a cell phone listed take an extra minute to google the company. This way you’ll know if the company actually exists. Also, if you doubt the validity of the contact, you can call the main number and ask for either the HR department or the supervisor directly. This will ensure that you’re talking to an actual employee of the company and not just one of the candidate’s friends.

Also, consider asking questions only a supervisor would know about an employee. For instance, ask what rating the candidate received on his last performance evaluation, when was his last pay raise or what was the best/worst project completed by the candidate.

If you’re contacting a coworker of the applicant ask what specific projects they’ve worked on together and what the reference thinks of they’re supervisor. Most often, just a friend won’t be able to clearly articulate believable answers.

Remember to always document the reference’s name, contact number, job title, company and full reference provided. If you ever doubt the validity of a reference, feel free to call a few more. In my experience, in addition to an employment verification of at least five years, at least three references are contacted.

It’s also fairly common to use social media to “investigate” candidates. Though doing so can provide insight on the candidate, it can also increase your risk of a discrimination claim. Depending upon what social media sites are used, you may have access to the candidate’s culture, religion, citizenship status or even medical information. Thus, completely staying clear of this information will reduce the risk of the candidate claiming he wasn’t offered a job because of these protected characteristics.


April 23rd, 2015, 8:47 PM |  Posted in: Hiring and Staffing |
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Limited duty

Is there any requirements that a employer keep a employee on limited duty while recovering from a work place accident.

The determination of an employee’s ability to return to work after a workplace accident is up to the treating physician. The treating physician must determine if the employee is physically able to return to work on light duty or with no restrictions.

April 23rd, 2015, 8:05 PM |  Posted in: Human Resources Management |
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Return to Work

Employee is released to come back to work on light duty. Do I have to let them come back or can I make them wait until they are released with no restrictions?

The federal Americans with Disabilities Act (ADA) requires an employer to provide reasonable accommodation to qualified employees with disabilities. Reasonable accommodations may include job restructuring/adjustments (such as light duty), modified work schedule, and job reassignment. An employer does not have to provide a reasonable accommodation that would cause an undue hardship to the employer. A determination of undue hardship is based on several factors including the nature/cost of the accommodation needed, the overall financial resources of the employer and the impact of the accommodation on the employer’s operations. Basically, if the company is able provide light duty, then the company is obligated to provide light duty.

April 23rd, 2015, 7:58 PM |  Posted in: Workplace Management |
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We have an employee out on medical leave. She has received a letter stating her position with is being eliminated. It states that she can apply for any position within the company, take early retirement or as of Oct 31st take a severance pkg due to the position being eliminated. Now, after the 12 weeks of FMLA her Dr states she can not come back to work yet. Does she get STD? Can the company fire her since they have offered her an early retirement / severance pkg? If she goes bk to work can they fire her even though they have offered her these options?

Leave taken under the Family & Medical Leave Act (FMLA) is job protected. STD and LTD plans are wage replacement benefits. They don’t necessarily entitle the employee to job reinstatement. Whether or not an employee is entitled to STD benefits is dependent on the employer’s past practice/policy and the STD plan eligibility.

It sounds like the employee has a position with the company until October. So, if the employee would normally be entitled to STD, meaning if her position wasn’t being eliminated she could apply for STD, then it’s best practice to allow the employee to apply for STD coverage now. You don’t want to be perceived as discriminating against the employee due to her medical situation. Thus, it’s important to follow leave of absence policies or established practices in this situation even if the employee’s position will eventually be eliminated.

Otherwise, once the employee’s FMLA leave entitlement is exhausted, termination is usually acceptable. However, if her condition is considered a disability under the Americans with Disabilities Act (ADA) she may be entitled to an accommodation such as additional unpaid leave. Again, it’s best to follow the same procedure as you would with any other employee in this situation.

If the company doesn’t have a leave of absence policy, the employee has exhausted her FMLA leave entitlement and she is not entitled to a reasonable accommodation under the ADA, she may be terminated. Now, since she’s been offered a separation package it’s good practice for the employer to set a deadline of which the employee must select an option. If no option is selected by the deadline then the employee forfeits her rights to the offers.

April 23rd, 2015, 7:31 PM |  Posted in: Benefits, Labor Laws, Termination |
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