Human Resource Blog

It is true that Oklahoma does not have any law that would require you as an employer to give breaks to workers. This includes meal breaks, rest breaks and smoke breaks. Because of this, you could eliminate all breaks if you wanted.

However, if you are covered by the federal FLSA or Fair Labor Standards Act, then you must pay workers for breaks shorter than 20 minutes, under federal law. The FLSA does not require that employers give breaks — but it does require that employers who choose to give breaks shorter than 20 minutes pay workers for them. The FLSA covers employers with annual revenue over $500,000. It also covers employees engaged in interstate commerce. If you are covered by the FLSA (the federal minimum wage and overtime law) then you can require that employees clock out for smoke breaks, but every employee must be paid for every break that is less than 20 minutes. Usually, this includes smoke breaks.

If you are not covered by the federal FLSA then your policy of not paying for smoke breaks is legal.

Frankly, what most employers do is permit all employees the same number of breaks, whether they smoke or not. Employees are given an unpaid meal break of 30 minutes to one hour, plus a 10 to 15 minute rest break in the morning and afternoon. Smokers are permitted to smoke only during that time. Employees who take additional breaks are subject to discipline or termination.

Giving extra breaks to smokers is bound to result in poor employee morale among non-smokers.

And yes, you should always require that employees clock out if they are running an errand. But you should also require that they only run errands on their lunch break.  

This is a matter of your company policy as an employer, not employment law. There is no law that any employer has to take action against an employee who is late to work. But most do, for obvious reasons. It can be difficult or impossible to maintain business operations and deliver good service when employees are late.

How you treat exempt employees depends upon the industry. By law, if an exempt employee works part of the day — even 5 minutes — you must pay him or her for the full day. So you cannot dock an exempt employees wages because he or she comes in late.

In some industries it is not a big deal if the exempt employee comes in late. An exempt real estate agent or accountant may simply stay a little later to get the job done. In that case, you may want to be flexible with employees and not discipline an exempt employee for tardiness. In other industries, it can be a big problem if the exempt employee is late. Suppose a restaurant manager is late unlocking the store, resulting in the employees starting work late and the restaurant not opening on time. That could be a major problem.  In that case you might want to discipline the manager (an exempt employee) for not being on time.

Whatever your policy for tardiness of exempt employees is, it should be consistent.

This will depend upon your company policy, and what state you are in. A handful of states would require that you pay the employee for his vacation, but not sick leave. He would be entitled to payment only for vacation time earned — meaning time he was entitled to use on his last day of work.

In other states, the employee would be entitled only to payment for benefits as designated under company policy. It is very unusual for an employee to be paid for accrued but unearned vacation, except in California.

Different rules apply in California.

You may terminate this employee, but not because she threatens to file a workers comp claim. We agee with you that this supposed workplace injury is probably bogus. Most companies have policies that an employee can be terminated for not promptly reporting a workplace injury. Usually the injury must be reported to the supervisor on the same shift, or no later than the next shift. It is totally unaccpetable for an employee to wait 3 months to report an injury. That is why you will terminate this employee.  

It sounds like you have been more than fair with this worker, by offering her additional assignments that would increase her hours and allow her to keep her healthcare benefits. We agree that she may be inventing a workers comp claim to try to encourage you to allow her to keep her insurance.

Allow this employee to file a workers comp claim. Be sure you note on it that she did not report the injury for more than 3 months. We suspect that there are not any witnesses to this so-called injury — also note that on the form. Be sure to speak with your workers comp insurance carrier and let them know your suspicions. Meanwhile, terminate the employee for not reporting the inury promptly.

We will caution you against using the word *threaten* to describe filing a workers comp claim. Reporting a legitimate workplace injury is not an act of agression against the employer. Using such language makes you sound irrational. However, we agree with you that this employee is probably fabricating a workplace inury.  

Actually, you are mistaken. In order to qualify for the federal FMLA, your employee  must have worked for 12 months — but the months need not be continuous. So an employee could work for 9 months, then take time off and work for the same employer for another 3 months at some point. As long as the 12 total months of work occurred within 7 years, the employee would be covered by FMLA.

However, you are right — worked means worked. In this case, it sounds like your employee worked for 9 months and then was on disability for 3 months. The employee is not eligible for FMLA.

Just so you know, even if the employee were eligible for FMLA, most employers would have it run concurrently with workers comp, so he would be eligible only for 12 weeks of leave total.