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Apr04

Letter to retrieve belongings

What do you say in a letter to ask an employee to pick up their belonging?

The letter should be simple and to the point. Include a list of the belongings in the employer’s possession as well as the expectation that the employee contacts a specific person directly to schedule a time for him to retrieve the items. It’s recommended to send the letter certified to ensure the employee receives it.

If the employee doesn’t respond to the request it’s often in the best interest of the employer to ship the items to the employee’s last known address. The least expensive shipping method can be used but be sure to track the package to ensure delivery. It’s also a good idea to keep a list of the items shipped as well as pictures of the items if they’re valuable or fragile.

If, for some reason, shipping the items is not feasible the employer must consider state laws regarding abandoned property. Some states require employers to store the property in a safe place for a specified time frame prior to discarding it.

April 4th, 2014, 11:35 AM |  Posted in: Workplace Management |
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Apr03

Compensating a Salaried Employee for Contract Work

We are piloting our internal database system with other similar organizations. The initial set-up and additional customization of the software will take our IT Director several hours outside of his normal responsibilities. He is a full time salaried employee. The company has agreed to hire our IT Director as a contract laborer to complete the additional programming requests on his own time (and we have agreed). Our Finance Director wants the company to bill us for the service and then we will compensate the IT Director. Can we do this? Is that considered “bonus” income? The IT Director charges a higher rate per hour for his contract labor compared to what he is paid at our organization (we are a nonprofit). Is it better to let our IT Director contract this work out on his own or to let our Finance Dept run it through our books and pass along the income?

It’s possible for an employee to also work as an independent contractor for the same company. The classification of employee or independent contractor is based on each position individually. So, one position could clearly be an employee relationship while the other has more independent contractor characteristics. If an employer chooses to have the worker in employee and independent contractor positions it’s very important that the employer is absolutely certain the latter position is clearly classified correctly. Otherwise, the company is risking potential violations under the Fair Labor Standards Act (FLSA).

It’s often believed the safer approach is to have the employee work two jobs within the company and pay him directly through Finance as any normal employee. A common misunderstanding with this approach is that the employee will automatically retain his FLSA classification, meaning if his current position is exempt than is second job will also be exempt. This is not always true. Under the FLSA, a worker can only have one classification, exempt or non-exempt. The classification is based on the worker’s primary job duties but when a worker has two jobs within the same company the primary duties are actually a combination of both jobs. Thus, it must be determined if the combined responsibilities would still permit the exempt classification. If not, the employee must be re-classified as non-exempt for both positions and subject to overtime regulations per the FLSA.

Based solely on the information provided it’s difficult to determine if the IT Director would maintain his exempt classification. However, assuming he would continue to have autonomous decision making on matters of significance in the second position and the second position wouldn’t assume a substantial amount of his time, it seems the exempt classification would still be viable.

Keeping the employee on the payroll for the second job, eliminates the risk of “red flags” since having the same worker listed as an employee and independent contractor may illicit attention from regulatory agencies. As mentioned above, it’s still important to ensure proper classification in order to avoid costly FLSA violations.

Assuming the IT Director would remain exempt, it’s permissible to pay him either hourly or salary for the second position. Remember non-exempt and exempt are classifications under the FLSA determining the need to adhere to overtime regulations. Hourly and salary are payment methods. So, the exempt IT Director can be paid a salary for his primary job and either a salary or hourly wage for his secondary job while keeping his exempt classification. The additional payments to the employee would be considered supplemental wages.

April 3rd, 2014, 8:21 PM |  Posted in: Compensation, Labor Laws |
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Apr03

FMLA medication and tardiness

If an employee is covered by FMLA and her physician has prescribed a medication that may cause her to oversleep and be late to work, can that employee be disciplined, or at worse, terminated?

The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take twelve workweeks in a twelve month period of unpaid, job-protected leave for specified family and medical reasons. Eligible employees are allowed to take FMLA leave for both unforeseen emergencies and planned absences involving the care and bonding with a newborn, adopted, or foster child; and to care for oneself or immediate family member with a serious health condition.

FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Under FMLA regulations, there must be a medical need for such a leave and it must be that the medical need is best accommodated by an intermittent or reduced schedule leave. The medical certification submitted to the employer must address the medical necessity for intermittent leave and state the estimated frequency of the leave. If the initial medical certification doesn’t state the need for intermittent leave or if it’s determined that the employee’s absences substantially differ from what the certification states, the employer may request recertification to substantiate the need for more frequent absences as intermittent leave.

As long as the absences are verified by the medical certification and covered under the FMLA, the employee cannot be disciplined for them. However, if the employee is unable to provide a medical certification substantiating the need for intermittent leave under the FMLA, the absences are considered unexcused and normal disciplinary procedures should be followed. If this ends up being the case, it’s important to have clear documentation given to the employee stating that the absences are not covered under the FMLA. It would also be a good idea to have a documented conversation with the employee ensuring she is aware the absences are not covered and she will be subject to disciplinary actions if further lateness occurs.

April 3rd, 2014, 10:30 AM |  Posted in: Labor Laws |
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Apr03

California RIF

California RIF. Would it be illegal to lay off employees who make the most money. Regardless of their seniority, age, quilifications, disiplinary record or lack of.
Also, would it be illegal to get rid of full time employees in a RIF, then hire new employees to do the exact same job function, but as per diem or on call only status.

Reductions in force or layoffs are considered by employers as a cost cutting strategy. If no alternative options are feasible HR/Management are faced with the daunting task of deciding which employees must be let go.

Be sure that company policy, past practice, employment contracts or collective bargaining agreements don’t establish a standard for which employees must be laid off. For example, many agreements state employees must be laid off in least seniority order.

It’s important to establish clear criteria for which employees will be laid off. Quantifiable or objective criteria like seniority, employee classification i.e. full time/part time/on call, or clear productivity numbers are safest. Subjective criteria like quality of work or skills tend to be riskier. Using employees’ salaries as the criteria alone may be lawful; however, employers must ensure doing so does not result in disparate treatment or have an adverse impact on protected groups. For example, older senior workers tend to make more money than their younger entry level co-workers; so, laying off only highly paid employees over the age of 40 could be perceived as age discrimination. Employers should clearly document the selection criteria used and the justification for business necessity.

Employers have to plan for continuing operations during and after layoffs. As previously stated, laying off employees based on their classification is lawful. Hiring per diem employees at lower rates to assume some of the work responsibilities is also lawful as long as the employer is basing the decision on business need and not a discriminatory factor. Using the example above, if the employer then decides to hire on call staff in their twenties the laid off employees may have grounds for an age discrimination lawsuit. The safe thing to do when filling jobs held by laid off employees is to make the employees aware of the new positions even if the positions are less hours and less money. There is no legal requirement to do this; however, doing so and documenting such efforts reduces the risk for perceived discrimination.

Lastly, employers must be aware of federal and state laws applying to group or mass reductions in force such as the federal Older Workers Benefit Protection Act (OWBA) and Worker Adjustment and Retraining Notification (WARN) as well as California’s Layoff Protection Act.

April 3rd, 2014, 9:59 AM |  Posted in: Termination |
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Apr01

Reasonable Accommodation

I have an employee who has an on-going medical condition and is protected. We have downsized to a small firm of 9 and need each professional to be able to cover the most ground possible-optimally (w/o quality compromise).

Lately said employee has been getting sick again and at crucial moments when he/she has been needed because of un-moveable deadlines. It causes stress to her/his team and leaves an unaffordable gap for the time he/she is gone.

The principal gets very annoyed .
I point attention to “what are the needs of the business” in an effort to fram it that way and explore legal options handling this situation. My style as HR and general support is usually to find a solution to the ned first–like hire part time to fill the skill need and then come up with a solution for an unpredictable employee.

There seems to be a reluctance to take consequential action. The company really cannot afford to”carry” someone” and this person really cannot be expected to “stretch”. I would appreciate any thoughts on this.
Thanks

An employer with only nine workers is not covered under the two main federal laws that would apply to this situation, the ADA and FMLA. The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. The Family and Medical Leave Act (FMLA) covers employers with 50 or more employees.

Depending upon the state workers’ compensation law, a covered employee is entitled to wage assistance but the employer may not have to hold his job if doing so would cause significant hardship to the employer. Some states may permit the termination of the employee but require the employer to rehire him once he is able to return to work; while other states prohibit the termination of an employee on workers’ compensation.

Also, some states have adopted personal leave of absence laws in addition to federal legislation. Most of these laws don’t apply to small employers.

Without knowing why the employee is considered protected, it’s difficult to provide sound feedback but here are some things to consider.

Unless the employee’s absences are protected by the ADA, FMLA, worker’s compensation, or state personal leave laws, at-will employees can be terminated at any time as long as the reason is not illegal. Absenteeism and sub-standard work are legitimate causes for disciplinary action including termination.

It’s best to follow policy or established practice. If an employee in the past with a short term disability i.e. medical condition causing absences or sub-standard work was given accommodations and continued his employment then the same entitlement should be given to this worker. However, if this worker’s absences are more excessive and the hardship to the company is more significant, disciplinary action is warranted.

If no policy or past practice exists, it’s best to adopt a clear policy on how to handle this matter now and for future occurrences. The policy depends on what the company can afford to offer. Sample personal leave policies can be found on the internet and edited to meet company standards.

Aside from offering the employee a short term personal leave and, again, assuming no federal or state laws apply, an option is to have a discussion with the employee concerning her absenteeism and quality of work. Inform the employee that her work performance is not up to company expectations and future performance issues will lead to disciplinary actions. Be sympathetic to the employee’s personal condition but be clear that accommodations have already been made and his work still continues to suffer. Follow progressive discipline. If the poor performance continues after warnings then termination would be warranted.

Hiring a part time employee to assist with business need due to the employee in question being unreliable is only masking the problem. Yes, doing so will help the team and overall business short term. However, not dealing with the actual issue will only prolong the situation and set a standard for other employees. It’s best to address the situation now and establish guidelines for the employee’s future with the company as well as other employees who may find themselves in similar situations one day. Hope this helps!

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