Human Resource Blog

Yes, OSHA regulations and state worker safety regulations require that an employer furnish potable drinking water in every state.

Potable simply means not poisonous. Tap water is generally potable, meaning the employees can drink it without dying. Occasionally a town may issue a *boil order* for tap water, meaning it must be boiled before drinking, due to harmful bacteria. In that case, as an employer, you must provide an alternate source of potable drinking water.

However, there is no requirement that the employer provide bottled water. A jug or water cooler containing tap water from another source is fine. This is why huge yellow water jugs filled with ice and tap water are so prevalent on construction sites.

Yes, you should definitely change this policy. Your current policy would permit an employee who has 3 weeks of vacation and 3 weeks of sick leave to take 12 weeks of FMLA plus 6 weeks of paid leave per year. That is a total of 18 weeks, or 4.5 months every year — way too much leave. One of the intentions of FMLA was to be fair to employers by limiting the time an employee can take off to 12 weeks per year.

You absolutely can begin designating time as FMLA when it is for a reason that qualifies, and you should. Before you do so, however, you should issue a new written policy that specifies that the company will designate as FMLA any paid or unpaid time off for a qualifying reason.

Be aware that under the federal FMLA regulations, an employee is entitled to use paid sick leave while on FMLA, and may be entitled to use paid vacation following company policy. However, that time is still counted toward the total 12 weeks of FMLA.

Yes, you can include this as part of the severance arrangement. Different rules would apply if this was payment for time the employee had worked. However, if you are paying her severance at separation, over and above the wages she has earned, you can stipulate under what circumstances it will be paid. In this case, the agreement can state that $x will be paid as severance once the computer equipment is received in good condition. You should specifically list the electronics items in question.

The answer is: that depends on whether your timeclock is set up to round time in and out or not.

Generally speaking, both the federal and New York minimum wage laws require that an employee be paid for all the time worked. Whether an employee punches in an hour early or 5 minutes early, if he goes to work you must pay him for that time. You can discipline or terminate the employee for clocking in early, by you must still pay him for the time worked.

If the employee clocked in early and simply stood around chatting or drinking coffee instead of working, then he would not be entitled to payment for that time. However, be cautious with this. Things like walking to the work station, finding a pen and turning on the computer count as work time.

However, it is legal under both federal and New York law to set up your timeclock system so it automatically rounds the punches, as long as the rounding is in the employees favor 50 percent of the time. Many employers use the 7-minute rule for rounding to the nearest quarter hour, so that when an employee clocks in at 7:52, it is rounded to 7:45. When an employee clocks in at 7:53 or later, it is rounded to 8:00. Using this system, an employee who clocked in at 7:55 and out at 5:05 would be paid from 8 am to 5 pm.  

It would not be legal to set your time clock so that it rounded 7:45 to 8 am, and rounded 5:15 to 5 pm. Many newer payroll systems will do this, but it is not legal.

It is also legal to use a system that rounds the time worked to the nearest 6 minutes, or 1/10 of an hour. But again, the sytem must round 4 minutes to 0.1 hours, whether that results in the employee being paid more or not. Using that system, the employee in your example worked 8.2 hours that day.

The old adage *you cant have your cake and eat it too* comes to mind. Either an empoyee is exempt or non-exempt, you cannot have it both ways.

The best practice is for part-time employees to always be non-exempt. Remember that the federal FLSA says that you may treat certain employees as exempt. It never says that you must treat them as exempt. Even the CEO could be a non-exempt employee if you wanted. (However, you cannot flip the same employee back and forth from exempt to nonexempt.)

If the employee is non-exempt, you pay her by the hour. She earns more when she works 35 hours than she earns in a week when she works only 20 hours. You also have the flexibility to schedule the employee for fewer hours, saving money. However, a non-exempt employee is always entitled to overtime when working more than 40 hours in the payroll week.

If you treat this employee as exempt (assuming she meets all the other tests) then she must be paid the same salary every week, whether she works 15 hours or 115 hours. There are a number of pitfalls in exempt status for a part time employee. As you have noted, it is hard to forecast her hours correctly, to offer a fair salary. Even worse, at some point in the future a supervisor could conveniently forget that the employee is part time and require her to work 50 or 80 hours per week for the same salary.

To be fair and protect the organization, you should treat this part-time employee as non-exempt. You can legally do so, even if full-time employees with the same job duties are treated as exempt.