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We have an employee who will be with the company for 1 year in January and is entitled to 4 days PTO (We work 4 days per week). However, she will be changing to 3 days a week (to return to school) and according to our office manual, 3 days a week is still considered full time and an employee working 3 days would receive 3 days after 1 year. Does she still receive the 4 days PTO because she earned it then changes to 3 days PTO after the 2nd year anniversary? Thanks

The employee’s PTO entitlement depends on whether a lump sum or accrual method is used.

Let’s say you use a lump sum method, meaning employees get one lump sum of PTO for a 12-month period. The lump sum is to cover the employee for the next 12-month period, not the last 12-month period. So, if the employee is to be awarded a lump sum PTO in January then her entitlement is based on her position in January (3 days/week).

Now, let’s say you use an accrual method. With this method, employees accrue PTO based on their time worked. Even if employees are not able to use their PTO until their one year anniversary, PTO was still accruing over the last 12-month period. So, in this case, the employee would receive 4 days PTO since she earned it by working 4 days per week in the past 12-month period.

Ultimately, PTO entitlements are at the employer’s discretion. Just remember, whatever you decide in this case becomes past practice and will affect similar situations in the future.


November 28th, 2016, 1:48 PM |  Posted in: Benefits |
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Doctor’s Note

Can I request that an employee bring in a Doctor’s note for the dates of care?

Employers are permitted to require employees provide Doctor’s notes for absences due to an illness or injury. However, the circumstances in doing so must be considered.

Employers may adopt an attendance or sick leave policy that requires employees provide a doctor’s note for absences. It’s important that such a policy is uniformly applied to all employees. Further, the note should not include any medical information or diagnosis. It should only include the dates the employee was seen for care and any incapacity of the employee to perform his/her job functions.

The same general guidelines apply for worker’s compensation cases. Following a work related injury or illness, employers are permitted to require employees submit a doctor’s note or return to work release that confirms the employee is able to return to his/her job and in what capacity.

If an employee’s absences are covered under the federal Family & Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA), then doctor’s notes are only permitted in certain circumstances.

The federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 workweeks of unpaid leave in a defined 12 month period for specified family and medical reasons.

The FMLA applies to all public agencies, including State, local and Federal employers, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

The FMLA allows employers to require employees to submit a medical certification from a health care provider. However, the employee must be notified of the need for certification upon requesting FMLA leave. Otherwise, a request for a doctor’s note after the fact would be considered a request for recertification which is generally only permitted every 6 months.

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

Employers are permitted to request a doctor’s note from employees only in an effort to find out more information in order to determine if an employee’s condition/impairment is considered a disability under the ADA. The information can only be requested as part of the accommodation process and should be limited to only information needed to properly assess the applicability of the ADA and what, if any, accommodations can be provided.


November 28th, 2016, 1:20 PM |  Posted in: Attendance Management, Labor Laws |
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Non-Exempt Salaried Employee

If a salaried non-exempt employee is hired on a Thursday do we have to pay them for the whole week?

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 classified as either non-exempt or exempt. Hourly and salaried paid are compensation terms.

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 are typically paid an hourly wage. But, they can also be paid on a salaried basis as long as they receive at least the applicable minimum wage per hour worked and overtime pay as necessary.

Salaried non-exempt employees must be treated as non-exempt employees in every aspect under the FLSA. Salaried non-exempt employees need only be paid for time actually worked. So, if a non-exempt salaried employee is hired on a Thursday, he/she need only be paid for the time worked that week.

It’s worth noting that there are limited permissible deductions from exempt employees’ salaries under the FLSA. One of the being during an exempt employee’s initial or terminal weeks of employment if the employee doesn’t work the full week.


November 23rd, 2016, 9:49 PM |  Posted in: Compensation, Labor Laws |
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Minimum Hours Rule

I am in a business field and am looking into labor laws. I have recently stumbled upon a question that is clear is the state MA. However, in the state of New York the law is unclear. If an employer were to schedule an employee for just one hour is that allowed, or would the employer be required to pay the employee for a different amount? Does New York have a rule like Massachusetts’ “The three hour rule?” Your time would be much appreciated in responding to this question.

The Massachusetts Reporting Pay provision, also known as the “three hour rule,” provides:

When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage.

The only similar law in NY applies to the restaurant industry. Under § 137-1.6:

An employee who by request or permission of the employer reports for duty on any day, whether or not assigned to actual work, shall be paid at the applicable minimum wage rate:

(1) for at least three hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less;

(2) for at least six hours for two shifts totaling six hours or less; or the number of hours in the regularly scheduled shift, whichever is less; and

(3) for at least eight hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.


November 23rd, 2016, 9:39 PM |  Posted in: Labor Laws |
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Lunch Break – Outside Contractor

I live in Wisconsin and own my own firm. I work on a project in Illinois and I am contracted to do this work. I work 8 hours 3 days per week. Do I have to take a 20 min break for lunch even if I am NOT an employee. Thanks for your help

Wisconsin law doesn’t require employers to provide breaks or meal periods to employees. However, Illinois does. Under Illinois law, every employer shall permit its employees who are to work for 7 1/2 continuous hours or longer, with limited exception, at least 20 minutes for a meal period beginning no later than 5 hours after the start of the work period.

Though there is no specific exemption for contractors, the law clearly and constantly states “employees.” It’s reasonable to assume that independent contractors who own their own firms need not comply with the law. If you wanted to be extra diligent, you can contact your local DOL to ensure you’re in compliance.

Keep in mind, if you hire an employee to work with you on this project, he/she may be covered under the law.


November 23rd, 2016, 9:23 PM |  Posted in: Labor Laws |
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