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Short term disability

I have an employee who went on stress leave on June 2nd. I received a request from a potential employer to complete a questionnaire on her to see if she would be a good candiate for their firm on June 10th. Now that I am aware she is actively seeking employment elsewhere am I obligated to keep her as an employed member of my firm?

An employee on a guaranteed leave of absence whether through federal/state law or company policy shouldn’t be terminated solely on the presumption that she is seeking employment elsewhere. Most short term disability leaves coincide with legally required leaves or company leave policies. Such laws/policies often include restrictions for terminating the employment relationship.

Discharging an employee who is on a qualified leave under the Family & Medical Leave Act (FMLA) for applying for a job elsewhere would be unlawful. Generally, employers with at least fifty employees are covered under the act. The FMLA guarantees qualified individuals up to twelve workweeks of job protected leave in a 12 month period. Terminating an employee on approved leave prior to her return to work date is permissible in very limited circumstances such as a reduction in force or layoff. Otherwise, upon return from leave, the employee must be reinstated to her previous position or one that is substantially similar.

If the employee is on leave per company policy, then the same policy must be adhered to for this situation. As long as the employee has not violated the policy in such a manner that would warrant termination then doing so may lead to a wrongful termination claim.

Additionally, employers with fifteen or more employees are covered under the Americans with Disabilities Act (ADA), which prohibits the firing of an employee due to a disability. The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. Stress alone may not qualify for protection under the ADA; however, stress related conditions such as extreme anxiety or depression may be considered disabilities. Without knowing the specifics surrounding the employee’s leave for stress it’s difficult to determine if the ADA would apply. Regardless, terminating an employee with possible protections under the ADA may lead to a discrimination claim.

Protected leaves or accommodations don’t allow an employee to falsify or exaggerate the medical need for such entitlements. Employers are within their rights to request medical documentation certifying the need for leaves or accommodations. Employers may deny leave or accommodation requests from an employee who is unable to provide the appropriate documentation. However, an employee who provides the necessary documentation and is approved for the leave should not be terminated solely for seeking outside employment during her leave.

July 14th, 2014, 1:05 PM |  Posted in: Human Resources Management |
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Employment Contracts

One of our employee’s 90 days probation past two weeks ago. We still have some concerns regarding following our communication that we forget to put on contract. The only thing I see is that we increase her salary after ninety days. How do we fix what we forgot to put on the contract?

An employment contract is an agreement between an employer and an employee, which outlines the terms and conditions of the employment relationship. An employment contract generally includes the rights and obligations of both parties such as pay rates, raises and bonuses, job responsibilities and duties, employer provided benefits, and termination of employment procedures and restrictions. The terms of the agreement may need to be amended at times; thus, the original employment contract must be modified in order to reflect the changes.

Most employment contracts include a modification clause describing the process for making changes to the original agreement. Generally, a modification clause would call for the amendment to clearly indicate the changes in the original contract with written approval by both parties.

In the absence of a modification clause, either party can alter the terms of the initial contract with the other party’s consent. The first step is to discuss the situation with the employee. Explain the concerns with his performance and possible options for moving forward such as extending the probationary period.

If the employee agrees to the changes, a written addendum should address the original contract, detail the new terms and conditions, include a modification clause for future adjustments, and be signed by both parties.

The employee may not agree to the new terms and conditions. Depending upon the severity of the situation, the employer may chose to continue with the initial contract or terminate the relationship with consideration to the termination clause.

July 13th, 2014, 8:17 PM |  Posted in: Human Resources Management |
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Salary and minimum wage

We have a minimum hourly wage increase approaching in July 2014. Is it true that in calculating the salary base for exempt employees you can double the minimum hourly wage rate?

The U.S. Department of Labor administers and enforces the Fair Labor Standards Act (FLSA) which establishes minimum wage, overtime pay, recordkeeping, and child labor standards. Under the FLSA employees are classified as non-exempt or exempt. Exempt employees are excluded from overtime pay provisions. To be exempt an employee must pass all three tests, salary level, salary basis, and duties, as outlined by the FLSA.

To qualify for exemption, employees generally must be paid no less than $455 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. Doubling the minimum wage, which is currently $7.25 per hour at the federal level, would meet the salary basis test. Remember that a true exempt employee meets all three tests outlined by the FLSA. The other two tests have been discussed in previous posts.

Employers want to attract and retain good talent. Simply doubling the minimum wage may not accomplish this goal. Determining an employee’s salary should be based on median salaries for similar positions in similar industries. It’s in an employer’s best interest to conduct sufficient research to determine a competitive salary to offer an employee. Otherwise, the employer may find itself with high employee turnover and low employee morale.

July 13th, 2014, 7:47 PM |  Posted in: Compensation |
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I have an employee who is late almost every day. He says he has 10 minutes to get to work after we start (which is 8:00am)before he can get in trouble. Is that true? We are a company in Shreveport, Louisiana.

There is neither federal nor Louisiana state law requiring employers to provide employees with any amount of grace period. Outside of a collective bargaining agreement or employment contract that states otherwise, employers can consider an employee who arrives one minute after his scheduled start time to be late to work.

An employer’s payroll rounding practice is often confused to be a grace period to employees. The federal Fair Labor Standards Act (FLSA) permits employers to round an employee’s time worked, provided that it does not average out to the employee being paid for less time than the employee actually worked. Rounding can be done in 5 minute increments, 6 minute increments or 15 minute increments. So, if the employer practices rounding it’s important to establish timekeeping policies that clearly state the employer’s expectations regarding start and finish times.

It’s recommended to meet with the employee and explain that he is expected to arrive on time to work and there is no grace period. Explain the consequences for continued lateness including disciplinary actions up to and including termination.

July 13th, 2014, 7:00 PM |  Posted in: Attendance Management |
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Long Term Disability

Can you let someone go that is on long term disability if you know that they will never return to work?

Once an employee has exhausted any guaranteed leave either by state/federal law or company policy, an employer must consider the facts on a case by case basis when determining if the employee has a need for an extended leave or termination is warranted.

Employers are not required to provide never-ending leaves of absences. Leaves extended beyond guaranteed timeframes may be considered reasonable accommodations under the federal Americans with Disabilities Act (ADA). The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship.

Employers have an obligation to participate in discussions with employees once notice of a disability or requested accommodation has been received. The discussions must include an interactive exchange of information which specifically addresses reasonable accommodations. An employer does not have to provide a reasonable accommodation that would cause an undue hardship meaning a significant difficulty or expense.

If medical evidence indicates the employee will not be able to return to work in the future and the employee is unable to provide information to counter the evidence, then an extended leave would most likely be considered an undue hardship for the employer. Thus, terminating the employee may be justified.

However, if the employee provides medical information indicating that he can’t currently perform the essential functions of the job with or without accommodation but may do so in the future, then it’s recommended to place the employee on extended medical leave until such future date unless doing so would case the employer undue hardship.

If it’s determined that an extended leave would be a significant difficulty or expense, an employer must be willing and able to defend its decision. The burden generally lies with the employee to prove an accommodation would cause undue hardship. Undue hardship is based on several factors including the cost of the accommodation, overall financial resources of the employer and the impact the accommodation would have on the employer.

It’s important for employers to consider all reasonable accommodations prior to terminating an employee who has exhausted his guaranteed leave rights. Considerations must be provided on a case by case basis. Clearly documenting all discussions and actions regarding the situation is extremely important in case the employee claims wrongful termination.

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