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Prorating Earned Vacation Time

We have a clinician that has decided to leave the practice. However, said clinician has earned 4 weeks of vacation time as of February 1, 2016. As in agreement at time of hire, if one chooses to leave employment they are entitled to the a prorating time earned up until their last day. How does one figure out how much time the company owes her?

Pro-rating vacation time is a common question. The calculation is fairly simple.

Let’s say the employee works 40 hours a week. She earns 4 weeks (or 160 hours) of vacation time a year. So, we need to determine how much time the employee earned from February 1st to her last day of work. Let’s say the employee’s last day is July 15th.

Divide total number of vacation hours (160) by number of weeks in a year (52) = 3.076 hours of vacation earned per week.

There are 24 weeks from February 1st to July 15th. Thus, the employee would be entitled to 24 weeks of vacation time.

Hours of vacation earned per week (3.076) x weeks of vacation entitlement (24) = 73.824 hours of vacation.

So, the employee has earned 73.824 vacation hours.

Make sure to set a standard rounding practice.


July 14th, 2016, 1:59 PM |  Posted in: Benefits |
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Drug Testing Policy

Our company employs 25 people. Of the 25, 10 are required to work on the client’s property. All clients require drug screenings prior to our employees going on the work sites. Is it legal or non-discriminatory to require only the 10 employees to be drug tested pre-employment and through random tests?

It is permissible for an employer to require drug screenings of applicants and employees of specified positions only. To ensure the policy is non-discriminatory, the positions requiring drug tests should be clearly noted in job postings and the employee handbook, and the fact that clients require drug tests should be documented.

As long as there is a legitimate business reason for requiring only certain positions to be drug tested and in doing so certain groups of individuals aren’t being signaled out based on protected characteristics (race, ethnicity, religion etc…), the practice is acceptable.

Keep in mind each state has its own regulations regarding drug testing. Some states have notice requirements and mandate certain procedures be followed. Just be sure to know the laws in your state.

Also, random drug testing can be effective in detecting drug abuse by employees but it can increase the risk of discrimination claims. An employee who feels he is being targeted is more likely to claim discrimination. To mitigate the risk, develop a truly random selection process. It’s best to adopt a thorough, clear drug testing policy and make sure it’s distributed to employees.

July 14th, 2016, 1:43 PM |  Posted in: Hiring and Staffing |
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Direct Deposit

Can an employee legally have their paycheck direct deposited into someone else’s account even if their name isn’t on that account?

There is no federal banking regulation that prohibits employees from direct depositing their paycheck in to a bank account without their name on it.

Some employers only allow their employees to use self-named accounts to avoid potential issues. Though there are many reasons an employee may want to use another individual’s bank account, problems can arise if the employee is attempting to hide the money for any reason or if the owner of the account fails to give the employee access to it. With a proper direct deposit authorization agreement these issues could fall more on the employee than the employer. However, some employers just prefer to adopt strict policies on the matter to prevent their involvement in any issue.

Also, some banks may prohibit deposits from individuals not named on the account. It would really be up to the employee to resolve any issues with the bank directly. But, again, some employers simply prohibit the practice to avoid any issues.

Employers must also be aware that a few states have adopted regulations regarding direct deposit. Even absent state law, employers should require each employee using direct deposit to complete and sign an authorization form.

July 14th, 2016, 1:11 PM |  Posted in: Compensation |
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Productive vs non-productive hours

I’m a hospital controller and there exists this dumb pay code called ‘Absent Time’ which a non productive pay type and so does not count toward worked hours (and OT). I’m arguing that when an hourly employee works at home (making and answering phone calls and emails) on behalf of the employer that this is productive time and should be classed as ‘Regular’. I’ve quoted FSLA and DOL to no avail. The employee’s supervisor says she’s at home on her couch so it’s non-productive time. I’m at my wits end. Any suggestions?

The federal Fair Labor Standards Act (FLSA) is very clear that all hours worked by a non-exempt employee must be compensated and counted towards the total number of hours worked in the workweek for calculating overtime. The DOL has provided guidelines on what constitutes hours worked.

Basically, anytime an employee is suffered or permitted to work must be compensated. An employee working from home, especially when the work is clearly relevant to her normal job duties, is considered to be working and must be compensated for the time.

If the employee is on-call while at home then whether the time is considered compensable work time or not depends on whether the employee is able to use the time for personal activities.

An on-call employee who is required to make and respond to occasional calls and emails but is still free to use the time for personal activities such as eating, shopping, going to the movies, or any other activity of his choosing, is not required to be compensated for such time.

However, an on-call employee who receives so many calls, emails or any other work related interruptions that he cannot engage in personal activities must be compensated for the time.

The supervisor may be questioning whether responding to a call or email is considered hours worked under the FLSA. But, not paying the employee solely because she’s working from her couch is not a valid reason.

Make sure the supervisor is aware that violations of the FLSA can result in both civil and criminal penalties. Civil penalties include up to $1,000 for each violation in addition to paying back wages and damages to the employee. Willful violators who’ve shown complete disregard for the law can face felony charges. Most noteworthy, an “employer” under the FLSA can also include company executives, directors and supervisors. So, the supervisor has a personal stake in the matter.

If the scare tactics don’t work and you’re still convinced the time should be considered hours worked then it’s a good idea to take your concern to the next level. Involve HR, Directors, or Administrators. Whoever you feel needs to be aware of the risk the company is taking.


July 14th, 2016, 12:48 PM |  Posted in: Compensation |
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FMLA using paid leave and working extra hours

Is it acceptable if an employee comes back to work on a Wednesday after being on FMLA and asks to work extra hours so she doesn’t have to use more of her accrued time off? Would we run into any problems?

Allowing an employee to make up absences due to leave under the federal Family & Medical Leave Act (FMLA) is permitted. However, it’s not a guaranteed right under the law. It’s up to employers to adopt a policy or practice regarding making up time.

Problems can occur when the policy or practice of making up time is unclear.

Are employees allowed to work extra hours during the same week FMLA was used solely to replace lost wages? Or will the additional hours worked also permit the employee to save or make up FMLA leave time?

Either method is acceptable. Whichever method is used, it must be clearly explained in the FMLA policy and consistently applied.

Keep in mind, the FMLA requires employers to provide benefits to employees on FMLA leave in the same manner offered to employees on non-FMLA leave. So, if you allow employees on non-FMLA leave to work extra hours to make up absences and avoid using PTO then the same must be allowed of employees on FMLA leave.

July 13th, 2016, 10:24 AM |  Posted in: Benefits, Compensation, Labor Laws |
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