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Jul29

Pregnancy Discrimination Act

Hi. I am researching Georgia’s laws on pregnancy and was wondering what the difference between the federal Pregnancy Discrimination Act and Georgia’s Fair Employment Practices Act was? Both seem to state that you must treat pregnancy as you would any other short term disability. Why have a state law that only covers public employees that says the same thing as a federal law? And doesn’t the ADA not consider a normal pregnancy a disability? Thanks! Kendall

Hi Kendall,

The federal Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. Basically, as you state, a covered employer must treat women affected by pregnancy, childbirth, or related medical conditions in the same manner in all terms and conditions of employment as other applicants or employees with similar abilities or limitations. The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits). .

The PDA is an amendment to Title VII of the Civil Rights Act which covers employers with 15 or more employees, including state and local governments.

The federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

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.

You’re correct in stating that pregnancy alone is not considered a covered disability under the ADA because it doesn’t meet part of the definition of a disability. However, complications resulting from pregnancy and childbirth, as well as conditions exacerbated by pregnancy and childbirth, may be considered impairments and may therefore be covered disabilities.

The Georgia Fair Employment Practices Act (FEPA) prohibits state agencies from discriminating against any individual on the basis of race, color, religion, national origin, sex, age, disability, or retaliation. Furthermore, the same leave benefits provided to employees with temporary disabilities must be provided to women disabled by pregnancy.

This law is comparable to several federal laws enforced by the federal Equal Employment Opportunity Commission (EEOC) including Title VII of the Civil Rights Act, Pregnancy Discrimination Act, Age Discrimination in Employment Act, and Americans with Disabilities Act. However, the major difference from Georgia’s FEPA is that these federal laws cover all employers with 15 or more employees, including state and local governments.

It’s very common for state laws to mirror federal laws. Doing so further encourages employers to obey the law and provides no gray area for misinterpretation of prohibited activities. Some states may adopt laws that pertain only to public employees in response to federal legislation or to address concerns mainly found in the public sector at the time. HTH!

July 29th, 2015, 9:20 PM |  Posted in: Labor Laws |
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Jul29

Vacation Time Payout if Employee Quits

I had an employee who started March 2, 2015. All employees get 2 weeks PTO. She quit without notice on July 27, 2015. She has already used 38 hours. Do I need to pay the remaining 42 hours since she hasn’t even been here 5 months?

There is no federal law regarding the administration of PTO benefits for private employers. Some states have adopted such laws. Please comment on this question with the state listed and we can research applicable state laws.

In general, most states that have laws regarding PTO benefits simply require the employer to abide by its own policies or established practices. Meaning, if you have a policy that entitles employees to receive their remaining PTO balance upon separation of employment, then you must obey your own policy.

Absent state law, a collective bargaining agreement or an employment contract stating otherwise, employers are permitted to grant or deny employees payment of unused PTO accruals upon separation at their discretion. It’s advisable for employers to adopt clear, easily understood PTO policies including whether unused time will be paid upon separation and any stipulations to such entitlements.

July 29th, 2015, 7:42 PM |  Posted in: Benefits, Termination |
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Jul25

Breaks for Exempt Employee

Can I require my exempt employees who are not under a collective bargaining agreement and do not work with/manage people with disabilities to take a 60 minute lunch versus a minimum of 20? Thank you.

There is no federal law that requires employers to provide employees, either exempt or non-exempt, with breaks or meal periods. Some states have adopted laws for break and meal period requirements. However, such laws often don’t apply to exempt employees.

So, in general, requiring an exempt employee to take a lunch break of any duration is a matter of company policy. Just remember, any time spent taking breaks cannot be deducted from an exempt employee’s salary. An exempt employee’s salary cannot fluctuate based on quality or quantity of work.

Be prepared for some backlash from your exempt employees. Exempt employees often believe that their exempt status allows them to not have to follow a set schedule including when and how long to take lunch. Thus, it’s best to clearly communicate your new policy and be prepared for some questions and a little animosity.

July 25th, 2015, 7:03 PM |  Posted in: Compensation, Labor Laws |
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Jul25

Overtime Hours Determination

My new position requires me to do complex payroll that I have never done before. I am unclear on how hours are calculated in the “counts toward overtime” rule. For example, an employee works 40 hours in a week but takes one vacation day. Should she be paid with a pay code that the vacation day “does not” or does count toward overtime? Or if an employee works only 24 hours a week does the one personal day she took require a “does not count” toward overtime? In essence, how many hours does someone have to work for these codes to apply? Thanks for any reply to this question!

The federal Fair Labor Standards Act (FLSA) establishes compensation guidelines for employees. Under the FLSA, employees are either non-exempt or exempt.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements prescribed by the FLSA. Conversely, exempt employees receive a fixed predetermined salary and are excluded from overtime pay provisions.

Non-exempt employees must be paid for every hour actually worked. Paid time off including holidays, vacation, or sick leave is not considered time worked. Thus, such time need not be counted towards the calculation of overtime.

Let’s say a non-exempt employee worked 38 hours and used 8 hours of vacation time, totaling 46 hours for the week. The employee is not entitled to overtime pay since he only actually worked 38 hours. Thus, you would select that the vacation hours “do not count” toward overtime.

However, an employee who worked 42 hours and used 8 hours of vacation time, totaling 50 hours for the week, would be entitled to 2 hours of overtime pay. You would still select that the vacation hours “do not count” towards overtime since it’s not the vacation hours that make the employee entitled to overtime pay. The 2 hours actually worked over 40 hours are the hours that count towards overtime.

So, just to be clear, since there is no requirement that paid time off be counted towards the calculation of overtime, you should always select that vacation hours “do not count” towards overtime.

HTH!

July 25th, 2015, 6:44 PM |  Posted in: Compensation, Labor Laws |
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Jul25

Non-exempt Salaried

We are government branch employees and everyone is paid via salary. If I have a non-exempt salaried employee who is normally scheduled for 20 hours per week, do I have to pay them extra if they work 25 hours in one week vs. 20 hours they are normally scheduled for? In other words, do I have to pay for each hour vs. the salary for anything under 40 hours? They earn OT via comp time for all hours worked over 40 per week and then are paid $$ if they reach over 200 hours of comp time in any pay period.

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

Under the FLSA, employees are either non-exempt or exempt. Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements prescribed by the FLSA. Conversely, exempt employees receive a fixed predetermined salary and are excluded from overtime pay provisions.

Salary and hourly paid are compensation terms. Though uncommon, a non-exempt employee can be paid a salary each workweek. However, the employee still must be paid for each and every hour worked and receive overtime pay for hours worked over 40 in a workweek.

So, if the employee’s salary is based on 20 hours a week and she works 25 hours one week, she is due compensation for the additional 5 hours worked.

Usually, overtime pay must be paid to the employee in cash. However, there is an exception to the overtime provision for public agencies.

Under the FLSA, a public agency is defined to mean the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States, a State, or a political subdivision of a State; or any interstate governmental agency. The public agency definition does not extend to private companies that are engaged in work activities normally performed by public employees.

Employees of state or local government agencies may receive compensatory time off, at a rate of not less than one and one-half hours for each overtime hour worked, instead of receiving overtime pay in cash. Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all other state and local government employees may accrue up to 240 hours.

There are even further exemptions from overtime provisions for fire protection and law enforcement employees. For details on these exemptions please post another question.

July 25th, 2015, 6:32 PM |  Posted in: Compensation, Labor Laws |
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