Human Resource Blog

There is no set period that the employee must be re-employed, but discrimination is still a factor here.

It is illegal for an employer to take any employment action against an employee because the employee has used FMLA leave. If the employee returns to work for one or two days, and you discharge her, it will certainly appear that you are engaging in this form of illegal conduct, and just looking for any excuse to fire the employee.

Ideally, if there were preformance issues in the past, they would have been dealt with promptly. We understand your concerns about pregnancy discrimination, but an employer can hold a pregnant employee to the same performance standards as any other employee. Suppose Sherry makes too many mistakes on data entry. Even though the employer writes Sherry up for this inaccuracy, that is not pregnancy discrimination if a non-pregnant employee who made the same number of errors would also be written up.

Unfortunately, if you have not addressed the performance problems that occurred prior to her leave, it is probably too late to do so now. You are basically starting off with a clean slate. If the employee performs poorly, that problem should be addressed. Ideally, you would focus on objective, provable standards like the number of errors in data entry, not a \\\’poor attitude.\\\’

If there are no written warnings from before the employees FMLA leave, that shows that her performance before the leave was excellent — or at least, that is what her lawyer would argue in court.

If the employee has no previous disciplinary warnings, the best bet is to go through the entire process with her. The first incident of poor performance will result in a verbal warning. The next two or three will result in written warnings, and the final one will result in termination. If the warnings are issued less than a week apart, it suggests that you are just looking for an excuse to fire this empoloyee, and her performance is not the actual problem. So for a disciplinary termination, probably 4 to 6 weeks, minimum.

If your company, like many others, is reducing staff, you could certainly decide to eliminate this employees position. That could even be done while she is on FMLA leave, without legal repercussions. Just be aware that if the position is eliminated, you cannot turn around and hire someone new to fill it! And she will likely qualify for unemployment benefits. But that option would allow you to release the employee much sooner.

Under federal law, as well as state laws in Indiana and Illinois, an exempt employee need not be paid for the entire week, when they are terminated mid-week. If the employee has only worked 3 days, he or she can be paid just 3/5 of the usual weeks salary.

Both Indiana and Illinois permit employers to make deductions from an employees paycheck for loans, which is how upside down PTO is usually handled. (The thought process being that when Sally took an extra day off and was paid for it, the employer was basically loaning Sally one days salary. The loan comes due if Sally is terminated, under most company policies.) As long as the employee signed an authorization willingly, the employer can deduct any overpayment. Most employers include such an authorization when newly hired employees sign the employee handbook. Usually an authorization is also included on the form that employees sign to request PTO. Such authorization must be freely given, and not coerced. If you have such an agreement, there should be no problem withholding one days salary for each day of PTO owed.

If you do not have such written authorization, you cannot deduct money from the employees paycheck for the negative PTO balance. The company just loses it.

Suppose Sally is terminated after working 3 days this week. Sally owes 3 days of PTO, and has signed an authorization for deduction. Her employer could legitimately pay Sally nothing, because the amount Sally owes is equal to the wages she is due.

Read more about the Illinois law here: http://www.state.il.us/agency/idol/faq/qawage.htm

Read more about the Indiana law here: http://www.in.gov/dol/2345.htm

In the U.S., unlike some other countries, the federal government does not dictate what holidays a private employer must give to workers (even in California.) Employers are not required to be closed on any holiday. And if they are closed, they can choose to pay or not pay workers, as the employer prefers. Yes, Thanksgiving is a federal holiday. But that only means that the post office and other federal government offices are closed — it does not mean that every private employer must be closed.

Many, many businesses are open on Thanksgiving, including grocery stores, drug stores, gas stations and some retailers. Staff at hotels and motels, and some restaurants (fast food) are needed 365 days per year. Thanksgiving is one of the busiest days at many movie theaters. Obviously, those who provide emergency services, including police, firefighters and hospital personnel work on holidays — and we are glad they do! When you watch the football game on TV, not only are the football players, coaches and referees working, so are the cameramen, producers, announcers and hot dog venders. And there are too many other people who work on Thanksgiving to list (including the person who is answering your question!)

So lets all take a minute to list the many things we have to be thankful for, including jobs and the people who provide necessary services on Thanksgiving!

We do not recommend that you leave this up to the companys discreation. If you pay accrued PTO to some employees who are fired, and not to others, that can easily lead to a lawsuit for illegal discrimination.

A better plan is to establish a policy that accrued PTO will never be paid to certain employees. Some sample wordings: \\\\\\\”Employees who are laid off through no fault of their own, and employees in good standing who resign with two weeks notice, will be paid for accrued PTO upon termination. Employees who are fired for cause, or for gross misconduct, will not be paid any accrued PTO.\\\\\\\” You can change the wording to suit your policy. For example, some employers would pay PTO to an employee who was terminated due to tardiness (fired for cause) but not one who was terminated for theft (gross misconduct.) Or, you could leave out the part about two weeks notice, and just include \\\\\\\”employees who resign will be paid…\\\\\\\”

This is really an accounting question, not an HR question. But we believe that the employee is correct.

In this example, the employee is not really \”buying\” anything. When an employee buys 5 extra vacation days, he or she is reducing their annual income by 1/52 (an amount equal to one weeks salary) and spreading that reduction over 26 pay periods. Suppose the bi-weekly deduction is $75. Since the employee is not really earning that $75, he or she should not have to pay taxes on the unearned (and unpaid) amount.

However, even if the employer continues to do this wrong, it will even out in the end. Basically, the employee is having an extra weeks worth of income tax withheld each year. When the employee files his or her income taxes, the refund will be more, because these taxes were withheld.

It is also important that the employer accurately report the employees earnings. Suppose John normally earns $1,000 per pay period. With the $75 reduction, Johns earnings for the pay period are $925, not $1,000. And John should be paying tax on the lower amount.