labor lawAdivision of labor law center

One of the hottest HR topics right now is salary reductions for exempt employees. Many employers are faced with a choice of laying off employees, or using other tactics to reduce payroll.

 

When employers reduce exempt employees’ salaries, they must take certain precautions to avoid breaking the law.

 

One option to reduce payroll is to reduce hours for hourly employees. By having every hourly employee work 36 hours per week rather than 40 hours per week, an employer can reduce his or her payroll expenses by 10%. (In many cases, however, the cost of benefits remains constant.)

 

However, that solution won’t work for salaried exempt employees. Under the federal Fair Labor Standards Act Fair Labor Standards Act, or FLSA, employers must pay an exempt employee his or her full weekly wage, regardless of how many or how few hours the employee works per week. If the exempt employee works 60 hours per week, he or she is not entitled to overtime. However, if the exempt employee works 20 or 30 hours per week, he or she must still be paid the full weekly salary.

 

This raises a question for employers. Is there any legal way to reduce an exempt employee’s salary?  The answer is “yes.” Under certain circumstances, an exempt employee’s salary can be reduced, according to the U.S. Department of Labor.

 

In order for the exempt employee’s salary reduction to be defensible, it should be:

 

• Permanent
• Applied to an entire group or class of employees
• Not directly tied to a reduction in hours 

If an employer temporarily reduces an exempt employee’s salary when business is slow, this can change the exempt status of everyone in that job. For this reason, the employer should always present the salary reduction to employees as permanent. There should be no promise or suggestion that the salary reduction is only temporary. The salary reduction needs to remain in effect for a minimum of 3 months.

 

Applying the salary reduction to only one or a few exempt employees can also change their exempt status. Ideally, the company would reduce salaries for exempt employees by the same percentage, across the board. If that is not possible, everyone with the same job should have a similar salary reduction.

 

Reducing hours for exempt employees when salary is reduced is a grey area. The safest course of action is for the employer not to reduce the number of hours when salary is reduced.  In some cases, the courts have ruled that when both salaries and hours are reduced, it changes the employees’ exempt status. In the worst possible scenario, employers have been required to pay the workers overtime for the past 3 years.

 

However, according to the SHRM, or Society for Human Resource Management, in some cases the courts have found that when a reduction in salary and hours for an entire class of exempt employees is part of a change in business tactics, the employees retain their exempt status.  

 

Some states including California have different exempt employee laws.

 

 

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1. Posted by: John

   Can an employee be held as a 36 hour (3X12hr shift per week) listed as exempt? Then be required to report for meetings during non scheduled times and not be paid anything for the meeting time?

2. Posted by: Amelia

   Hi John! Yes. There is no requirement that exempt employees work 40 hours per week. The number of hours required per week is up to the employer, to establish for each exempt position. While most exempt employees work 40 or more hours per week, an employer can certainly hire an exempt employee to work 20, 30, or 36 hours per week — or any other number of hours. (Under federal law, the exempt employee must earn at least $455 per week.) And yes, an employer can require that an exempt employee attend meetings on his or her day off, without additional pay. (The exempt employee could even be required to work additional 12-hour days, with no additional pay.) If the employee does not attend the meetings, the employee can be disciplined or terminated. HTH, and thanks for reading the blogs!~ Amelia

3. Posted by: Rob Whitters

   If I was hired as both the site lead for my team in California and as the Modeling and Simulations lead. If my company decided to split these two positions can they subsequently reduce my salary or are they obligated to continue to pay what I was hired at? My company is based in Washington and I am working on a government contract.

4. Posted by: Amelia

   Hi Rob! Because you have a contract with two states and the federal government involved, it may take an attorney to determine your rights in this situation. However, in general, an employer can reduce an employees salary when the job changes. (Actually, the employer can reduce the workers salary even if there is no change in job description, but that is another topic.) In many cases, when an employees salary is significantly reduced, and the employee quits rather than accepting the lower salary, the employee qualifies for unemployment benefits. However, if the employee continues to work at the new rate, he or she has accepted it and does not qualify for unemployment. HTH, and thanks for reading the blogs!~ Amelia

5. Posted by: steve

   I am an exempt employee working 40 hrs a week-paid a salary based on per hour. No overtime pay is allowed since exempt. My hours were reduced to 32 hours a week which was to be considered permanent. My salary was reduced likewise based on the same amount per hour–still an exempt employee. I am still considered full time at 32 hours a week for benefit purposes. Thus no change in benefits.
   Each office is independent but there are many offices. Other individuals with same responsibilites were not given reduced work ours and treated the same way. I accepted the change for reduced work and salary. According to federal law for salary employees-does it require the company to treat all employees in same classification and responsibilities the same?

6. Posted by: Amelia

   Hi steve! Employers are permitted to treat workers in the same classification differently, if there is a valid business reason for doing so. For example, a retail operation might decide that a store with $100,000 in sales per month only requires the manager to work 32 hours per week, while a store with $200,000 in sales per month requires a manager who works 40 hours per week. This would be lawful.
   However, if the employer decided to reduce your salary based on your race, color, religion, age (between 40 and 70), sex, pregnancy, or disability, that would be illegal discrimination. If you think that occurred, you should contact the EEOC to file a complaint at http://www.eeoc.gov. HTH, and thanks for reading the blogs!~ Amelia

7. Posted by: Andrew

   What is the maximun total hours that an employer can have a salaried manager work per day? per week??

8. Posted by: Amelia

   Hi Andrew! We can guarantee you are not going to like this answer, but here goes…there is no maximum in most states. An employer can require an exempt employee to work 120 hours per week or more. In fact, theoretically, an employer could require an exempt employee to work 24 hours per day, 7 days per week. Obviously, that is physically impossible, but there is no law in most states to prevent it. HTH, and thanks for reading the blogs!~ Amelia

9. Posted by: Eric

   Sorry for digging up such an old post, great blog. My interest is in the legality of changing an employee’s status from exempt to non-exempt when the job responsibilities do not change.

   In January we were told that starting Feb.1 that we would changing to a reduced work week of 4-day weeks, 32 hours. Consequently, my salary was reduced by 20%. After checking my pay-stub, I noticed that I was changed from an exempt employee to a non-exempt. This was never part of the communication from HR. We were told that in 6 months the situation would be re-evaluated. To me this means temporary.

   Would you recommend that I seek the advice of a labor attorney? I had read somewhere that when you change from exempt to non-exempt, any overtime from some number of previous years (3?) could be retroactively requested as a grievence. In my case it would be hundreds of hours each year.

   Thanks!

10. Posted by: Amelia

    Hi Eric! This sounds legitimate to us. There is no law that any employee must be exempt. Any employer can make any employee, including the CEO, exempt at any time. The employee does not necessarily have to be told that the change is being made, although it would be a best practice.
    Changing an exempt employee to non-exempt status does not entitle the employee to payment for overtime for the past 3 years in a situation like yours. The employer has changed the job, which is lawful, especially if it applies to a number of exempt employees.
    When an “exempt” employee is suddenly treated as a non-exempt employee, with no change in working conditions or job, that can result in liability.If the employer kept switching the employee back and forth, from exempt one week to non-exempt the next week, the US Department of Labor would see that as an illegal attempt to avoid paying overtime. The DOL would probably sue the employer and determine that the employee wa never an exempt employee. The DOL would require that the employee be paid overtime for the past 3 years. However, that is not the case here. The employer made a formal announcement that they were changing the job — even though they failed to inform you that you were now non-exempt.
    You may define a change that lasts 6 months as “temporary” but the US Department of Labor defines any salary change that lasts 3 months or more as permanent. So the employer handled this properly. In their defense, many, many employers are taking this step to avoid laying employees off.
    You can certainly seek the advice of a labor law attorney, but frankly, you would just be throwing your money away if you filed a lawsuit. HTH, and thanks for reading the blogs!~ Amelia

11. Posted by: Julie Wright

    Who many days can a salary employee work before a day?

12. Posted by: Amelia

    Hi Julie! Sorry, we’re a little unclear on what your question is. Could you repost it?Thanks~ Amelia

13. Posted by: Vaughn

    Do the salary reduction restrictions apply to “draws” against commission? I have recently had my draw completely suspended until my business picks up. The company said they will re-evaluate in 3-4 months, though by that time I will be in the poor house. Also, the company has a zero tolerance policy (unofficial) to lay-offs due to (I’m sure) paying unemployment insurance premiums…do I have any legal recourse?

14. Posted by: Neal

    I am an exempt employee (Chemical Engineer), with 29 yrs at my firm. This year, my employer gave us 2, 1 week furloughs (1 week in 2nd and 1 week in the 3rd quarter). Because this was a furlough, we were entitled to apply for unemployment pay.

    However, in the 4th quarter, they are planning to reduce our pay 10% for 10 weeks, and reduce our hours by 10%. The effect is the same as a one week, 40 hr furlough, with the disadvantage of not being entitled to any unemployment pay.

    Is this legal?

    Thanks.

15. Posted by: Amelia

    Hi Vaughn! No, commissions are not salary. Therefore, most regulations regarding salary do not apply to them.
    Check with your state department of labor regarding the salary requirements for commissioned salespeople. Under federal law, generally they must be paid at least $455 per week. In many states, an employee who quits due to a significant reduction in salary or change in working conditions, qualifies for unemployment.
    We are not clear what you mean when you say that the company has zero tolerance towards layoffs. That the company is not laying people off? Great!
    Many companies have a policy of routinely denying every unemployment request. The employee can appeal the decision, and may win benefits upon appeal. HTH, and thanks for reading the blogs!~ Amelia

16. Posted by: Amelia

    Hi Neal! It is legal for the employer to unilaterally reduce a salaried employee’s wages permanently, as long as the employee is informed in advance. The employer can do this without any corresponding reduction in hours worked. (And most salaried employees across the country have had reductions of at least 15% over the past year.)

    It is also lawful for the employer to reduce the hours worked at the same time, as long as the reduction is considered permanent. Legally, the federal regulations define “permanent” as “lasting every pay period for 3 months or longer.”

    So it looks to us like the employer’s actions are lawful. The only problematic part is the fact that employees apparently are being encouraged to see this reduction as temporary.

    An employee whose salary is reduced does not qualify for unemployment. When employees collect unemployment benefits, it increases the employer’s unemployment insurance premiums (sometimes for years.) So, the employer is trying to save on payroll without paying higher unemployment — which is a reasonable, prudent and responsible step for them to take.

    When an employee’s salary is significantly reduced, and the employee quits rather than accept the reduction, in some cases the employee qualifies for unemployment benefits. However, it is not clear that a 10% reduction would qualify.

17. Posted by: Julie

    I am a store manager ( exempt) we are not allowed to take vacation doing Nov – Dec I wants to go on vacation Dec 27 thru Jan3 can i get fired, I do not have a contract

18. Posted by: Amelia

    Hi Julie! Yes, you can be fired for taking an unauthorized vacation. Suppose one of your employees did not show up for 10 days beginning the day after Thanksgiving. Would you fire him or her? Of course you would. It’s the same situation.
    There is no law that an employer must offer paid vacations to workers. If the employer does offer a paid vacation, the employer can dictate when the employee takes it. Most employers require advance approval of vacation, and limit when the vacation can be used. Some employers even tell workers, “You will take vacation from July 15 to July 22″ or whatever. HTH, and thanks for reading the blogs!~ Amelia

19. Posted by: Barbara

    Can you please explain exempt salaried employees under this circumstance – Can you be an exempt salaried employee who was working 40 hour work weeks with X amount of pay and then ALL exempt salaried employees work a 32 hour work week and a 20% pay cut. All benefits will still be paid at 100%, although vacation and sick leave will be pro-rated based on a 32 hour work week and not a 40 hour work week.. What will the employer need to do to apply this and how much notice to the employees? Thank You.

20. Posted by: Amelia

    Hi Barbara! Yes, this is a very common situation in the current economy. In fact, the majority of companies have had to reduce salaries for at least some employees.
    The salary reduction is really not a problem as long as every exempt employee is still paid $455 per week or more. An employer can unilaterally reduce an exempt employee’s salary as long as employees are informed in advance. Different states require varying amounts of notice, but the best practice is to inform employees one full pay period in advance that their salary will be reduced. And this reduction can take place with no corresponding reduction in hours worked.
    In fact, the reduction in hours worked is more of a problem than the salary reduction. Under federal law, an exempt employee’s salary cannot vary from week to week based upon the number of hours that he or she works. However, the federal courts have found that as long as the reduction in salary and hours lasts for at least 3 months, and is not presented to the employees as temporary, it is lawful.
    Most companies already have a policy in place that vacation or sick pay will not be paid in excess of the employees scheduled hours — in this case, 32 per week.
    The employer could still offer other benefits such as group health insurance at the same level as previously. If you have additional questions, feel free to post them. HTH, and thanks for reading the blogs!~ Amelia

21. Posted by: Vicki Gorin

    During my absence from the office due to FMLA one of our employees had their salary reducted by 10% for disciplinary purposes. This is a long-term employee with approximately three counseling forms on record. However, the employee received no advance notice of the salary reduction, no other employee has ever experienced a salary reduction due to disciplinary measures and there are employees on file with 8 to 10 counseling forms on record. What do you suggest?’

    I am the VP of HR and the only person willing to follow the standard labor guidelines but am not sure how to proceed in this case.

22. Posted by: Amelia

    Hi Vicki! There are 3 major concerns here. 1) Unless this individual’s transgression was especially egregious, singling him or her out for a salary reduction creates a situation where that employee could sue the company for illegal discrimination and win. The employee, of course, would claim that it was his or her race, color, religion, national ancestry, sex, etc. that resulted in this employee’s salary reduction when employees with 8 counseling forms did not experience the reduction.
    2) It was unlawful to reduce the employees salary without notifying the employee in advance.
    3) Under the new Ledbetter Act, any pay disparity between sexes can set the company up for a lawsuit, even 20 years later. So this decision could be a time bomb, if workers of a different sex in a similar position are making more money.
    We suggest that you present these concerns to those who made the decision in your absence, and propose a compromise. The employee’s salary would be reinstated (perhaps retroactively.) This performance issue would be addressed on the employee’s next regularly scheduled evaluation, perhaps resulting in no salary increase and a lower rating. (If the employee’s conduct was especially egregious, we would have suggested an unpaid disciplinary suspension of 3 to 10 days at the time. However, imposing the suspension at this time is also problematic.) HTH, and thanks for reading the blogs!~ Amelia

23. Posted by: Harold H.

    I realize employers are not required to give holidays.

    I am an exempt employee. My company is requiring us to take Monday, Tuesday and Wednesday of the Thanksgiving week off without pay. They are paying us for Thursday and Friday as holidays. Can I get paid for a partial week?

24. Posted by: Amelia

    Hi Harold! What the employer is doing is entirely lawful and even generous. Your are being paid for a partial week — you are being paid for Thursday and Friday as holidays. Assuming that you do no work at all during that payroll week, the employer could pay exempt employees nothing for the week.
    There is no law that prohibits an employer from paying an exempt worker for a partial week. There is a law that prohibits an employer from paying an exempt employee from a partial week of WORK. (There are a few exceptions to that law, that don’t apply here.) Since you did not WORK at all that week, the employer’s actions are lawful.
    If you worked one day that week, such as Monday, the employer would have to pay your usual salary for the entire payroll week. But paying an employee for a holiday is not the same as the employee working. HTH, and thanks for reading the blogs!~ Amelia

25. Posted by: Paige

    Amelia, just found this post.
    Can an exempt employee who has already taken a 25% salary reduction be forced to take another 20% reduction–totalling 45%? And what is the maximum percentage of “pay cuts” allowed? (i.e. can a company force a salaried employee to take a 80% paycut?)

26. Posted by: Amelia

    Hi Paige! Okay, first of all, an employer cannot “force” an employee to accept anything. The employer informs the worker of the pay cut, and the employee decides if he or she will work for the new wage. Usually an employee who quits rather than work for the new lower wage is entitled to unemployment benefits. However, if the employee works even one day at the new rate, the employee has accepted it.
    There is no maximum percentage for the reduction. The employer can reduce an exempt employees salary to $455 per week. Employees who earn less than $455 per week are never exempt — they are always entitled to overtime. But outside of that restriction, there is no limit on the percentage or dollar amount of a pay cut. Suppose Jane earns $250,000 per year. The employer could reduce her salary by 90.536%, to $23,660 per year (or $455 per week) and Jane would still be an exempt employee. As long as the employer informed Jane of the change in advance, it is lawful.
    However, if the employer reduced Jane’s salary to $454 per week, then Jane would be entitled to overtime when she works more than 40 hours per week.
    Nationwide, most salaried exempt employees have taken a pay cut of about 22% since July 2007, but the amount is greater in some industries. HTH, and thans for reading the blogs!~ Amelia

27. Posted by: Bo

    The company I work for changed our pay period from twice a month to every two weeks. With that change came a reduction in my salary. I was recieving 24 checks per year and now I will be receiving 26 checks a year. The company reduced my salary so that the 26 pay checks equal the 24 pay checks. They notify us about the change bimontly to biweekly. The managers never notified us about the change in salary.

28. Posted by: Amelia

    Hi Bo! This is not a reduction in salary. Your paycheck is for less each payday. But since you are paid 26 times in the year instead of 24, you will earn the same amount each year. It is lawful for the employer to do this, and they even followed the best practices in HR.
    When the company informed you that from now on you would be paid every 2 weeks instead of twice per month, a reasonable person would have assumed that each paycheck would be slightly less. If your paychecks were the same, the company would actually be giving you a substantial raise. HTH, and thanks for reading the blogs!~ Amelia

29. Posted by: len

    amelia,

    I want to ask about the company where my husband works.. He is a 5 years working in the company. And now, the problem is last month his salary was reduced to 43% without any reason. His co-employees are receiving the same salary except him. He tried to talk the management regarding his problem but until now there is no answer to his complaint..

    Is this legal for a company to reduced the salary in one of his employee without any reason? I need some advice from you…

    thanks a lot,

    len

30. Posted by: Amelia

    Hi len! Unfortunately, if your husband knew about this reduction in salary in advance, it is legal.
    An employer can reduce any employee’s salary at any time, as long as the employee is informed in advance of the new rate. Some states require that employees be notified several weeks in advance, but in other states even a one-day notice is enough.
    Many companies are reducing all employee’s salaries in these tough economic times, because the alternative is to lay off employees. However, usually this type of salary reduction affects everyone — not just one person.
    It is possible that your husband has been demoted. In that case, the employer found your husband’s performance was lacking, and changed him to a lower-paying job. If that is the case, there is little that you can do about it at this point. (Is it possible that your husband knows this, and just doesn’t want to tell you?)
    However, if your husband’s performance is good and he has been unfairly targeted for this rather large reduction in salary, that may be illegal discrimination. For example, if your husband were the only Hispanic employee (or the only Hispanic manager), and the only one to receive a salary decrease, that would be illegal discrimination. If that is the case, he should file a complaint with the EEOC at http://www.eeoc.gov. HTH, and thanks for reading the blogs!~ Amelia

31. Posted by: Kathy

    Amelia, I work at a furniture manufacturing company in Kentucky. Summer is our slow season. In order to prevent a huge layoff this past summer, we imposed a pay cut for all salaried employees and reduced work hours for all production & non-salaried office employees in July 09, which everyone was fine with. We are waiting for orders to increase so that we may return all employee’s pay / hours to what they were before the pay cut. My question is, if we were to face this problem again next summer, would this be unlawful to do again? And is there a problem with how we handled this issue?

32. Posted by: Amelia

    Hi Kathy! Your actions sound completely lawful to us — and we think you handled the situation well.
    It is always lawful for an employer to reduce hourly employees’ hours, therefore reducing payroll. This is a very prudent way to control costs and avoid layoffs.
    It is lawful for an employer to reduce exempt employees’ salary, as long as the employees are still earning at least $455 per week, before taxes. The salary reduction is absolutely not an issue, as long as the exempt employees know about it in advance, and it lasts for at least 3 months. Ironically, it is when you reduce the exempt employees’ hours, as well as their salary, that a problem can arise. However, as explained in the article above, as long as the reduction lasts for 3 months, and affects an entire class of employees, it is lawful.
    You could do the same thing next summer and it would still be lawful. However, you might want to consider another option. There is no law that you must return employee’s wages to their previous level. Many hourly and salaried employees have had permanent reductions in wages due to economic conditions. So you could certainly give employees a slight increase, perhaps 50% of the wage reduction. This measure should mean that you won’t have to reduce salaries and wages again next summer. (Just to be safe, though, don’t make any promises. We never know what the economy will do.) HTH, and feel free to post any additional questions you might have!~ Amelia

33. Posted by: Sean

    Hi,
    I am an exempt employee. I recieve a set salary, paid twice monthly.

    I was informed last week that I need to take 1 day off a week temporarily, resulting in my salary being reduced by 1 day.

    is this legal? an exempt employee being laid off 1 day a week essentially is what is happening. I always thought exempt was paid to do a job not hours worked.

34. Posted by: Amelia

    Hi Sean! This may not be lawful.
    You are a salaried employee — but not all salaried employees are exempt. It is lawful for an employer to pay any employee on a salary basis, to make processing payroll easier. However, a salaried employee can be either exempt or non-exempt. A non-exempt salaried employee is still entitled to overtime when working more than 40 hours in the payroll week. In addition, the non-exempt salaried employee’s salary can be docked, when the employee works fewer than normal hours in the payroll week.
    Exempt employee, on the other hand, must be paid their full weekly salary if they do any work whatsoever in the payroll week, and are ready, willing and able to work the entire week.
    If you are genuinely an exempt employee, then the employer can put you on furlough one day per week, or can give you an extra day off. However, as the article above explains, you must be paid your usual weekly salary.

    The employer can permanently reduce your salary to 4/5 of the former rate. It is completely lawful to permanently reduce an exempt employee’s salary. In many cases, it is also lawful (but not necessary) to permanently reduce the exempt employee’s work week, at the same time. However, it sounds as if this change is temporary.

    The employer may be treating you as a salaried non-exempt employee (which means you would be entitled to overtime.) Or, if you are genuinely exempt, the employer is taking an unlawful action when they reduce your salary for a one-day furlough. Refer to the article above for more details. You can file a wage complaint with the US Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Amelia

35. Posted by: Kristi

    I am an exempt salaried employee. We had been receiving Holiday Pay for the majority of the yearly Holidays. We were just told that we would not be receiving holiday pay for Veteran’s Day. or the Day after Thanksgiving. I inquired if I could use my accrued vacation days/or personal days in lieu of the Holiday Pay. I was told I could not since it would defeat the purpose of not paying any of us Holiday Pay. Our company is closed on Veteran’s Day and the Day after Thanksgiving. My salary will be reduced from 40 hours of pay to 32 hours of pay. Is this legal?

36. Posted by: Amelia

    Hi Kristi! No, this is not legal. First of all, there is no federal or state law that any US employer must observe holidays, or pay employees for holidays if the business is closed on that day. So the employer can legitimately eliminate all holidays.
    Even if the employer has an established practice or a written policy of observing certain holidays, and offering paid holidays to employees, the employer can change that policy at any time. In the case of paid holidays, the employer gives and the employer can take away. And, the employer is giving employees plenty of notice that they will not be paid for Veterans Day and the day after Thanksgiving. (Very few employers observe those days as holidays anyway.)
    However, under the federal FLSA or Fair Labor Standards Act, a salaried exempt employee who is ready, willing and able to work the entire week, and works any part of the payroll week, must be paid his or her usual salary for the week. So if you are genuinely an exempt salaried employee, and you work a portion of the payroll week, you must be paid your full salary even though the employer is closed on the holiday. Example: Suppose you work Monday, Tuesday and Wednesday of Thanksgiving week. The business is closed Thursday through Sunday. An exempt employee must be paid her full salary for the week, as long as she was ready, willing and able to work the entire week. If the employer pays you for only 32 hours, they are treating you as a non-exempt salaried employee. That would mean that among other things, you are entitled to overtime when you work more than 40 hours in the payroll week. HTH, and thanks for reading the blogs!~ Amelia

37. Posted by: Kathy

    Amelia,

    Thank you so much for your response to my previous question. Hoping you can help me with another question. I work in the HR dept for a privately owned furniture manufacturing company in the state of Kentucky. I was wondering, are we required to allow employees to view their files, if requested? If so are they entitled to more than 1 viewing of their files? And are the files of HR employees suppose to be kept separated from other employee files?

    Thanks!

38. Posted by: Amelia

    Hi Kathy! You are very welcome! We have a special website set up just for questions from HR pros like you. It’s at http://www.humanresourceblog.com. I also answer the questions on that site, so feel free to post as many questions as you like.
    But to address this question –
    A few states have laws that permit an employee to view his or her personnel file, or even have a copy of the file. Kentucky does not. These are private business records, and you are under no legal or moral obligation to share them with any employee. The best practice in HR is to give employees a copy of any written evaluation or written warning at the time. However, it is up to the employee to keep up with these documents. You are under no obligation to offer additional copies — and frankly, we suggest that you do not. (It goes without saying that you would never give an employee access to another employee’s file, or leave the employee unsupervised in a room with all the personnel files.)
    Unless the employee has a subpoena, you are not obligated to allow them access to personnel files.
    The best practice in HR is to keep personnel files in a locked drawer or file cabinet separate from other business records, but there is no law that this must be so. However, ADA and other laws require that confidential medical information be kept separate from the employee’s personnel file, in a different location where it cannot be viewed by the employee’s supervisor. In addition, the law permits you to keep copies of supporting documents for the I-9 form, but they should be in a separate file as well. HTH, and thanks for reading the blogs!~ Amelia

39. Posted by: Kathy

    Hi Amelia, I had a couple of questions I was hoping you could help me with. We have an employee who has been on worker’s comp. leave since April 2009. He has now been released to work but with permanent restrictions that we cannot accommodate. We are a furniture manufacturing company in Kentucky and there really isn’t any way for us to keep him as an employee with his restrictions. Also he has obtained an attorney, so my question is what is the best way to handle this situation?

    Also, job descriptions area and responsibilities, are these two different things? Or can we combine them should we be audited?

    Thanks so much for your help.

40. Posted by: Kathy

    Ameila,

    When it comes to slander, slamming or defaming the company to customers, other employees, relaying confidential information or misinformation especially to customers. What does that fall under and what does the company need to have or do in order to prove this?

    Also, misconduct: what are examples of this and what needs to be specifically done by employee and what proof do we need to have for proper termination and not eligible for unemployment if an employees is let go for this. Does slander falls under conduct?

    Thank you in advance!

41. Posted by: Amelia

    Hi Kathy! First of all, you need to contact your workers’ comp insurance company about this topic. They are your first advocate in this situation.

    But here is what the insurance carrier won’t tell you: We understand that you cannot accommodate this employee’s restrictions. But if he cannot return to work for you, he has a permanent disability. And having a workplace accident resulting in permanent disability will increase your workers’ comp premium, for every employee, for many years to come. So it might actually be less expensive in the long run for you to create a job suitable for this employee, rather than have him unable to return to work. For example, you might create a position as a file clerk, earning minimum wage, for this employee. Legally, you don’t have to do this — but again, it could actually save you money. (In a year or two, you could eliminate the position of file clerk without any impact on your workers’ comp insurance premium.)

    If at any time you feel that the insurance carrier is not representing the company well, then you will need to consult an attorney specializing in workers’ comp. Generally when an employee “lawyers up,” the employer needs to, also.

    As far as job description and responsibilites — we are not sure in what context this is being used. On an application? Job posting? For workers’ comp? But we will say that generally, responsibilities are more specific than a job description. The job description might be to answer client questions as a customer service rep. The responsibilities might be to answer 36 calls per hour, and provide courteous service to all callers. HTH, and thanks for reading the blogs!~ Amelia

42. Posted by: Amelia

    Hi Kathy! We would qualify slander or defaming the company or other employees as willful misconduct. That is also how we would describe relaying confidential company information or misinformation to customers. (Be aware of one limit on slander or defaming the company. In situations where employees are discussing forming a union, or organizing the labor force, much of that communication is permitted by federal law, even when it involves people outside the company.)

    If we were filling out a termination form, under reason we would put: Willful misconduct — defaming the company or Willful misconduct — relaying confidential business information to persons outside the company.

    Most employee handbooks have a “code of conduct” that specifically prohibits this type of action by employees. In many cases, under company policy, any of these actions are gross misconduct punishable by immediate termination — and justifably so. Make the language on the termination form as close as possible to the language in the employee handbook. This makes it very clear to the unemployment agency that the employee was aware that this conduct was prohibited. (If these types of actions are not covered under the employee handbook, it might be time for a new one.)

    In terms of proof, the standard for termination is much less strict than for criminal prosecution. Simply have any employee, supervisor or customer who observed this behavior write a note stating what he or she observed the employee doing, sign and date it. If the termination is based on a customer complaint, you can simply have the supervisor or coworker write a note stating, ” On November 1, 2009 customer Joe Blow complained that…”

    Kentucky is an employment-at-will state, meaning that you can terminate any employee at any time for any reason or without any reason. So you really do not need any proof to terminate the employee. However, in some cases the employee may be entitled to unemployment benefits. Generally an employee does not qualify for unemployment when the misconduct is willful — meaning a) the employee was fully aware that this was against company policy and b) the employee had control over the behavior. If the employee has signed the employee handbook, that should satisfy requirement a). All of the situations you mentioned are conduct that the employee has control over. (Will we say that state unemployment agencies are not 100% predictable, and sometimes act in illogical ways. But you are much, much better off without this employee.)

    In the future, if you fire an employee for matters of company policy that are not covered in the employee handbook, you may want to have 3 written warnings before you terminate the employee. This demonstrates that the employee was fully aware of the company policy (for example, about tardiness or meal breaks) and that you gave the employee every chance to comply. But frankly, in the case of disclosing confidential information or passing misinformation to customers, we would not wait that long to terminate the employee.

43. Posted by: karen

    My company just laid off around 15 people last week & we have around 30 employees left. The president of the company told my supervisor couple days ago that me & my supervisor will both get a 20% pay cut but everyone else in the company still make the same money. I am the only Asian in the company, I am 4 mths pregnant, I feel totally discriminated because of my sex & being pregnant. What should I do? I live in Missouri, if I quit, can I get unemployment? Also am I eligible for COBRA/ARRA the 35% subsidy for my health insurance (since health insurance is very important to me because I am pregnant)? Please help, thank you!!!!

44. Posted by: Amelia

    Hi karen! If the employer is reducing your salary because you are Asian or pregnant or both, that would be illegal discrimination. However, if there is a valid business reason for the two of you to be selected, that is not illegal discrimination. For example, if the two of you were the only ones in your department or are the highest-paid employees, those would be valid business reasons.
    In many cases, an employee who quits rather than accept a 20% pay cut is eligible for unemployment. However, if you work under the new salary for even one day, you have accepted it. You will be eligible for COBRA if you quit. However, you will not be eligible for the COBRA/ARRA subsidy, so you will have to pay 100% of the premium, rather than 35%.
    One possible solution: let the president of the company know that you think this is discrimination, but if he decided to lay you off, you would not file a complaint. If you are laid off, you will qualify for unemployment and the COBRA subsidy.
    Another option would be to remain with the company, but file a discrimination complaint with the EEOC at http://www.eeoc.gov. HTH, and thanks for reading the blogs!~ Amelia

45. Posted by: holly

    Hi there,
    I am a salaried exempt employee (actually the only one at my job, everyone else is hourly). We do not receive benefits, no vacation, no sick time, no paid holidays. Last week I was sick with the flu. Prior to finding out my condition I worked 1 full day and 2 partial days, then was told by my owner to stay home and rest and come back on Monday. I did so not thinking any different, then when pay checks came in mine was short. He docked me 24 hrs without notice! Am I entitled to pay for the week or is he in the right?

    Thanks in advance,

46. Posted by: Amelia

    Hi holly! A salaried employee can be either exempt or non-exempt. It appears that the employer is treating you as a non-exempt employee, which would make you eligible for overtime if you work more than 40 hours in the work week. A non-exempt employee’s salary can be prorated when the employee works fewer than 40 hours in the payroll week.

    Assuming that you were genuinely an exempt employee, you would be entitled to the full week’s salary when you were sick, under federal law. An exempt employee who works any part of the day is entitled to the full day’s salary. When an employer offers no paid sick leave, the exempt employee must be paid his or her usual salary for the payroll week, during any week in which the employee misses one or more days due to illness. (The rules would be different if your employer offered paid sick leave under some circumstances. Ironically, when the employer offers a bona fide paid sick leave plan or policy, and an exempt employee exceeds it, the employee need not be paid if they are absent from work the entire day. Different rules would also apply if you were absent for a reason other than illness.)

    Since you are being treated as a non-exempt employee, you could file a wage claim with the US Department of Labor at http://www.dol.gov for any overtime worked in the past 2-3 years. Or, you could file a wage claim for your full week’s salary, as an exempt employee. HTH, and thanks for reading the blogs!~ Amelia

    Read more about this at: http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.htm

47. Posted by: Kathy

    Hi Amelia,

    When it comes to employee files, what items do not need to be included in an employee file? Our company requires all employees to have a drug test done when they are hired, can these results be kept in the employee file or would this be considered a medical record and should be kept separate? Also when it comes to the I-9 form we have several employees who are from other countries, normally we make a copy of 2 forms of identification, usually their social security card and picture ID (driver’s license, work authorization card, or residents card etc). If they have a driver’s license do we need a copy of their work authorization or residents card also? Does the work authorization card overrule the I-9 form? We use “E-verify” to verify this information after they are hired. I’m just trying to make sure our files are correct for an upcoming audit. Thanks so much for your help.

    (We are a manufacturing company in Kentucky)

48. Posted by: Amelia

    Hi Kathy! The drug test should probably be considered medical information, and kept in the employee’s confidential file.

    Legally, you are permitted to make copies of the supporting documents for the I-9 form. However, if you keep copies, you must keep copies for every newly hired employee — not just those who were born in another country (and not just those who are Hispanic.) Selectively copying I-9 documents is illegal discrimination based on national origin. If you keep copies of the I-9 supporting documents, they should not be in the employee’s personnel file or confidential file. All the I-9s should be in a file or notebook together, preferably alphabetized.

    An employee can have a driver’s license and still not be able to work legally in the US. The driver’s license permits the employee to drive. A birth certificate, social security card or work authorization document proves that the employee can legally work in the US. So the answer to the question, “If we have a copy of their driver’s license do we need a copy of their work authorization card also?” is most emphatically “YES!!”

    Nothing overrules the I-9 form. The I-9 contains a very clear list of the documents that an employee can present to a) establish identity and b) establish authorization to work or c) both. Under no circumstances should you vary from this list, or allow anyone who has not presented these documents to work. By doing so, you are in violation of federal immigration laws, and very likely employing undocumented workers. (Even if the employee passes E-Verify, you need to keep the I-9 form on hand indicating that the employee has presented the required documents.) This is a complex topic, so feel free to ask any additional questions you might have. HTH, and thanks for reading the blogs!

49. Posted by: Kathy

    Amelia,

    Thank you. We do keep supporting documents for every new hire (regardless of race), I was just wanting to be clear on the supporting documents for employees who are not citizens of the US. All new hires also do complete the I-9s. Regarding the driver’s license, if we have a social security card and a document that proves that the employee can work in the U.S, do we need the driver’s license? (I didn’t word my question right in my previous blog).There was an attorney in Kentucky which told us that a copy of a Kentucky ID/driver’s license would also need to kept. I have never heard of this before.

50. Posted by: Kathy

    Amelia,

    Another questions, does a copy of the employee’s social security card also need to be kept in the employee’s file (a copy is kept with the I-9 along with the another supporting document)?

51. Posted by: Amelia

    Hi Kathy! You do not necessarily need a driver’s license or state ID card on every employee.

    Here’s the I-9 form in its entirety: http://www.uscis.gov/files/form/i-9.pdf . Many employers make copies of only parts of the form, which becomes a problem. An employee who presents a valid, unexpired document from column A does not need to present anything else. In fact, requiring that they present anything else may be illegal discrimination. For example, a US citizen can present a passport instead of a driver’s license and social security card. No further documentation is required for the I-9 form. As an employer, it is illegal for you to specify which identity documents the employee will present. They are free to choose from among any of the acceptable documents. You cannot discriminate against an employee who chooses one document over another.

    But wait, it gets a little more complicated. Because you use E-Verify, you can require that employees show the I-9 document(s) plus a social security card. E-Verify uses social security cards to verify the employee’s eligibility to work. The legislation covering E-Verify specifically grants employers that right. However, that does not give you the legal right to dictate which other I-9 documents the employee may use. An employee who chooses to do so can present a US passport, or a permanent resident card, plus a social security card. If this employee refused to supply a driver’s license or state ID card, and you refused to allow him or her to work, that would be illegal discrimination.

    The attorney probably gave you that advice because he is concerned that you need to establish the identity of the person you are hiring. That is a valid concern. (Undocumented workers very commonly pretend to be someone else, and present that person’s documents — including a driver’s license and social security card.) However, the I-9 permits employees to use any of the documents in column A or column B to establish identity — including a passport, resident alien card, draft card, military ID, etc. Most of these documents (for employees over 18) have a photo on them. Naturally, you should examine the photo carefully to ensure that they are the same person you are hiring.

    It is not appropriate to require that employees or applicants present a driver’s license unless driving is part of their job duties. It is not appropriate to require that employees present a state ID card when they have presented another I-9 identity document. HTH, and thanks for reading the blogs!~ Amelia

    Our favorite souce of I-9 forms is: http://www.laborlawcenter.com

52. Posted by: Amelia

    Hi Kathy! The best practice is to keep the copy of the social security card only in the I-9 files. However, since the social security card does not show the employee’s age, race or color, or citizenship status, there is no risk of illegal discrimination when it is kept in the personnel file as well. HTH, and thanks for reading the blogs!~ Amelia

53. Posted by: Jamie

    Can an employer reduce your salary for not being at work for 3 days one week due to a funeral? A month after the fact? My employer took 3 days out of my paycheck for a funeral 1 month ago. I got paid my normal rate last pay period and minus 3 days this pay period.

54. Posted by: Kathy

    Amelia,

    Another question about what should be in an employee file. All of our employees get an employee badge, with their picture and employee number on it, can this same picture be kept in the employee’s personnel file? Also can paperwork showing employee’s pay rate, dates of applicable pay changes,work positions changes, direct deposit information, requests for employment/payroll verification and court documents (such as, domestic violence issues) be kept in the personnel file? What about employee documentation on complaints? I’ve keep getting different information on what should and should be in the folders from other sites.

55. Posted by: Kathy

    This is what is stated in out employee handbook regarding Holiday pay:

    “For an employee to receive holiday pay, that employee must work the regularly scheduled full workdays immediately before and after the holiday. If an employee misses any of his/her scheduled work shift the day before or the day after a paid holiday due to an emergency or employee illness, the direct supervisor and administration must approve absence to receive holiday pay.”

    My question is, if an employee was scheduled to work on the actual holiday, such as Thanksgiving day, but on that day the employee did not show up nor did they call in, would we still be required to pay them holiday pay? Also if an employee used a vacation day for the day before or after the holiday, would they still receive holiday pay? Thanks!

56. Posted by: Amelia

    Hi Kathy! Most of these issues relate to the best practices in HR, rather than to employment law.
    As a general rule, you do not want any information in the personnel file that the supervisor would not consider in making an employment decision such as promotion, demotion, training, discipline, etc.

    It is not generally a good idea to keep the employee’s photo in the personnel file. This is because it is illegal to consider an employee’s race or color in any employment decision. Unfortunately, in the past some employers have used photos for this purpose. The simple way to conform to the law is to keep anything that would show the employee’s race or color out of the personnel file. If you must keep copies of these photos, keep them in the confidential file.

    It is completely appropriate to keep work history and salary information such as pay rate, pay changes, positions, direct deposit, employment/payroll verification information in the employee’s personnel folder. After all, the employee’s work history, references and salary history are important factors that any supervisor should consider in making employment decisions. (Many employers would keep credit checks or pre-employment background checks in the confidential folder. Once the employee is hired, they are no longer relevant. )

    It is not appropriate for court documents such as those regarding the fact that an employee is the victim of domestic abuse to be in the personnel folder. That belongs in the confidential folder. Any employee can be a victim of violence or abuse — it doesn’t tell you anything about that person’s work performance or potential work performance. (Some states prohibit employment discrimination based on being the victim of a crime or of domestic abuse.)

    If the employee has an order of protection against him or her, that is a different issue. Some employers would keep that info in the confidential file. Others might see it as evidence that the employee is potentially violent, and keep it in the personnel file. Either decision could be defended in court in most states. But the safest decision would be to keep that information in the confidential file.

    Any information regarding convictions, especially for violent crimes, can be kept in the personnel file in Kentucky and most states.

    It is appropriate to keep work-related documentation regarding complaints and investigations in the personnel file. Just be aware that you cannot retaliate against an employee for filing a complaint of discrimination or a wage complaint, even if that complaint is later found to be false. This is a complex topic. If you have additional specific questions, feel free to ask. HTH, and thanks for reading the blogs!~ Amelia

57. Posted by: Amelia

    Hi again Kathy! The important point to remember is that employee handbooks are basic guides to company policy — but they are not the entirety of company policy. It would be neither possible nor desirable to have every policy in writing, in excruciating detail. Some employees like to play “gotcha” by proclaiming that the employer cannot enforce a policy if it cannot be found in the employee handbook. They are mistaken. Those employees are ignorant of the basic facts: that the employer, not the employee, makes up the rules in the workplace. (If there is a union contract in place, that further constrains the employer’s policies.)

    In this case, nothing in the handbook addresses the specific situation of an employee who is absent on the holiday. So as an employer, you have leeway to create an appropriate (unwritten) policy. First, you should deal with this employee as you would any other who was no call/no show on a scheduled work day. In many companies, that means suspension or termination.

    There is nothing in your written policy that would require you to grant holiday pay to the employee who was a no-show on Thanksgiving . The handbook policy only addresses what happens when an employee is scheduled to be off on the holiday. There is almost no company in the world that would give the employee holiday pay under these circumstances.

    There is a different situation if the supervisor approved a day of vacation in advance, and that vacation day fell on the day before or after the holiday. In that case, the direct supervisor and administration approved the absence, and presumably the employee is entitled to holiday pay. (If the employer could not approve that, the employee should have been told in advance “We can approve your vacation day for Wednesday Nov. 25, but you will not be paid for the Thanksgiving holiday if we do.”)

    However, if this is the same employee, having an approved vacation day on Wednesday does not excuse being no call/no show on Thursday and once again the employee is not entitled to holiday pay.

    If the employee took an impromptu, unscheduled day off before or after the holiday, that is a different issue. Most employers do not permit employees to use vacation time in this way, and would not pay an employee who did so holiday pay. In effect, that absence has not been approved by the direct supervisor and administration. HTH, and thanks for reading the blogs!~ Amelia

58. Posted by: Amelia

    Hi Jamie! Yes, this is legal in almost every state except California. An exempt employee need not be paid when he or she takes one or more full days off work for personal business — and a funeral is personal business. So you were overpaid by 3 days during that payroll week. Virtually every state except California permits an employer to make a deduction during a later payroll cycle, when the employee is accidentally overpaid. That is what the employer did. HTH, and thanks for reading the blogs!~ Amelia

59. Posted by: Kathy

    Amelia, regarding the employee picture in the personnel file. We keep a photo in the file specify for identification purposes because we are a very diverse company of over 400 employees. Also in past years, when we’d receive notice from the social security administration that it was possible that one of our employees was using false documentation, they would ask us to send a photo in along with other information. Would the photo in the file this still be a problem, if it were just for identification purposes ?

60. Posted by: Amelia

    Hi Kathy! Yes, the photo is still a problem, even if your intention is not discriminatory. For one thing, how will you prove what your intention was, if you are sued for discrimination? For another, it can have a discriminatory effect, even if that was not the intention. When companies keep info on an employee’s race or color, fewer minority employees tend to get promoted.

    Here is how a slick lawyer would put it in court: A manager has two personnel files on his desk — one of a Caucasian employee, one of an African American employee. He doesn’t know either employee, but has to decide which one gets promoted. They both have very similar qualifications. The files have photos in them, and the Caucasian employee gets the promotion. The slick lawyer will claim that this is obviously discrimination — that your intention in keeping photos in the file was to allow managers to distinguish between employees based on race and color. How are you going to show that race or color did not play a part in that promotion decision? The best way would be to show that the manager did not have information on race or color available in the personnel file.

    The E-Verify situation is a separate issue. Oftentimes, when identity theft is suspected, the DHS or social security will request a photo of the employee. You can certainly use the employee’s ID badge photo for this. However, like other E-Verify documents, it is not appropriate to keep this in the personnel file. If this is your purpose in keeping the photos on file, then they should be kept with other I-9 documents. Otherwise, we recommend that they are kept in the confidential file. (In fact, one of the reasons that I-9 documents are kept separate is because they contain photos, and present a risk of illegal discrimination based on race, color, etc. or the appearance of such discrimination.)

    You can certainly keep photos of employees in their personnel files if you like. It will just make it very hard for your company to defend against any discrimination suit in the future. HTH, and thanks for reading the blogs!~ Amelia

61. Posted by: Kathy

    Hello again!

    When we verify employment for a previous employee, what information can we release? At the moment, we just release that dates that a person was employed with us. Is this all that we are obligated to tell a future employer? What about when it comes to violent employees?

    Also in addition to manufacturing furniture, we have a trucking division, when we are attempting to verifying previous work references for a trucker, what are we legally allowed to ask? Are we allowed to ask about that person’s previous pay amount, if they would be rehired, their general conduct and character?

    Kathy

62. Posted by: Amelia

    Hi Kathy! This is a delicate balance that every employer negotiates. You are not legally obligated to tell prospective employers anything. And of course, you want to get as much information about a prospective employee as you possibly can, which means that these two ideas are in opposition to each other.

    Unfortunately, there can be legal repercussions if you give out negative information that prevents a former employee from getting a job. (Some employers have been sued for millions of dollars and won, even when the information they gave was accurate. For this reason, you may want to consult an attorney before setting a policy on giving references.)

    Some employers have no problem giving out tons of positive information on a good employee. So the very fact that the former employer is giving limited information, may tell you something. (Some larger companies will never provide more than a neutral reference, verifying dates of employment, salary and possibly reason for leaving.)

    Most employers will verify the dates the employee worked, and the salary the employee earned. (Verify meaning the caller says, “The employee tells us he earned $12.75 per hour, is that correct?” or “We show that he worked for your company from December 2006 to March 2009, is that correct?” and you answer “yes” or “no” with no futher details.) Many employers will answer the question, “Is the employee considered rehirable?” with a simple yes or no. A “no” to any of these questions would be a strong clue that the employ has not been honest, and should not be hired.

    Some former employers will answer the question, “If you were in my situation, would you hire this person as a truck driver?”

    When you are on the other side of this equation, you can ask the previous employer almost anything — but they are under no obligation to answer. (Obviously you would avoid questions like “What religion is this employee?” and “Does she plan on having more children?”) Usually it is easier to start with the simple yes/no questions, and gradually ask for more information. “Did the employee have any problems with tardiness or absenteeism?” and “The employee says he voluntarily resigned, is that correct?” should probably come before “What performance problems did the employee have?” In practical terms, once the former employer refuses to answer a question, they will probably refuse to answer all subsequent questions.

    You should certainly ask if the employee ever showed any violent tendencies. Again, there is a delicate balance here. Some employers will reply,”On the advice of our attorney, I cannot answer that question.” This means “Yes, but I’m not supposed to say so.” In that case, you would not hire the employee. Most employers would feel comfortable replying,”No, the employee never showed any violent tendencies” if that is true.

    By all means, ask about the employee’s previous salary history, rehire status, conduct and character — sometimes you will run into a newbie who will answer all of your questions in great detail. But put the most crucial questions first, so you get the basic information you need before the reference clams up.

    A few final words of caution. Sometimes the employee’s immediate supervisor is more forthcoming than the HR department. And, beware of any employee who provides only family members or friends for references. He probably robbed a bank at his last job. The same is true in spades for any employee who gives a minister, priest or rabbi as a reference. Usually clergy make it a practice not to say anything bad about anyone, rather than giving accurate information. HTH, and feel free to post any more questions!~ Amelia

63. Posted by: Kathy

    Amelia,

    If we hire someone and they give us a social security card and an ID from another state (we are in KY), are we required to have a KY ID on file?

64. Posted by: Amelia

    Hi Kathy! No, you are not required to have an ID from your own state on file. The purpose of the driver’s license or state ID for the I-9 is to prove identity (the social security card shows that they are legal to work.) As long as the state ID is unexpired, and appears genuine, it can be from any state. Again, the employer cannot legally dictate which I-9 documents an employee may use. The employee is free to choose between any of the acceptable documents listed on the I-9. Obviously, if you are hiring a truck driver in Kentucky, you will want him or her to have a valid Kentucky liscense. HTH, and thanks for reading the blogs!~ Amelia

65. Posted by: kristi

    I am a salried full time exempt employee in Oregon. My employer has me working 8hr days without any breaks….10 min. or 30min lunch. I am scheduled to work from 8:30-4:30. I work in a licensed chidcare where I am required to be in ratio during our winter break camp. They have not scheduled any additional staff to cover for a break. I know that if an hourly employee is unable to be relieved from all work duty for a lunch, they can have a “working lunch” and must be paid for that. My question is what about a salried exempt employee that is unable to take any breaks?

66. Posted by: Amelia

    Hi kristi! The Oregon meal break law applies to most but not all employees. 1) Some employers such as state and local government agencies are exempt, usually including schools. 2) The Oregon meal break law does not appear to cover exempt Executive, Professional or Adminitrative employees. 3) There is also a provision under the law that the employer need not give meal breaks to employees if it would pose an undue hardship on the operation of the employer’s business. If appears that 2 & 3 apply in your situation — it is probably not economically feasible for the employer to schedule an additional employee so that you can take a lunch break.
    There is nothing in the regulations that would prevent an exempt employee from eating while she was on duty (perhaps a sandwich?) but there is also no legal requirement that the employer must allow it.

    However, as far as we can tell, exempt employees are covered under the Oregon rest break law. This would mean that you are entitled to a 10-minute paid rest break for each 4-hour work segment. For more info, contact the Oregon Bureau of Labor and Industry. HTH, and thanks for reading the blogs!~ Amelia

67. Posted by: KR

    HI Amelia,

    I am an exempt salaried employee at a non-profit trade association in California. I suspect I am improperly classified because of my title. The “products” we offer are education and networking events. I produce those events. My title is Event & Education Manager but I do not supervise any employees. What are your thoughts?

68. Posted by: Amelia

    Hi KR! Under the federal FLSA, the Fair Labor Standards Act, there are 5 categories of exempt employees, depending upon the employee’s primary duties. Only one of those categories requires supervison of employees. We suspect that you are an exempt Administrator. Check the info below, and if you still believe you are improperly paid, consult the US Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Amelia
    Read more about this at: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf

69. Posted by: KR

    Hi again,

    So in your opinion, would the Administrative Exemption fit for me even though I am directly invovled in producing what we sell here (networking events and education?) Also, what are the rules as far as disciplining an exempt employee for tardiness?

70. Posted by: Amelia

    Hi KR! We can’t really make a determination on your exempt/non-exempt status without knowing a lot more about your job. Normally employees who produce a product are non-exempt, but in this sense, “produce a product” would mean a manufacturing employee who works on the line in a factory producing a tangible product…not an employee who teaches or organizes training events. (In HR terms, networking events and education are not a product…they are a service.) We think it is very likely that after looking at your primary job duties, the determination would be that you are an exempt Administrator.

    An exempt employee can be disciplined for tardiness. Employers have the right to establish minimum work standards for exempt employees, including the business hours they will be present, and the minimum number of hours worked per week. If an exempt employee works any part of the day, he or she is entitled to payment for the entire day. However, the employer can be disciplined or terminated for not working the expected hours.

    Suppose Rene is an exempt employee whose employer expects her to work from 8 am to 5 pm each week day. If Rene comes in at 8:10 one day or leaves work at 4:50, the employer must pay Rene her entire daily salary. However, Rene can be disciplined or fired for not meeting the employer’s minimum performance standards. HTH, and thanks for reading the blogs!~ Amelia

71. Posted by: KR

    Last question 9promise I read in California that in Bell v. Farmers Insurance the court held that claims representatives for an insurance
    company were not administrative employees.In reaching its decision, the court considered the distinction between “administrative” employees and “production” employees. Because Farmers Insurance Exchange’s primary business was handling insurance claims, and the claims representatives spent the majority of their time at work handling claims, the court determined they were production employees and therefore
    not covered by the administrative exemption, even though the work the employees performed was non-manual, office work that involved
    some discretion and exercise of independent judgment.

    My primary job function is to plan and implement our education offerings and networking activities. This happens to be our main revenue generator as well.

    Are your thoughts still the same? I understand you are not providing legal advise, I am just trying to gather information. I appreciate your help.

72. Posted by: KR

    I just found that the ruling was overturned due to the independent descretion portion.

    Thank you

73. Posted by: Amelia

    Hi KR! Ahhh. Just a word of advice. If you are working in California, you need to always mention it when asking an HR question. The California laws are much, much stricter than the laws in any other state, and generally what works in other states does not work in California. Our previous answer addressed the issue of exempt status under federal law. Yes, California has stricter guidelines than other states for exempt employees. Again, we would not be surprised if you are an exempt employee, even under the California laws. This would especially be true if you have any flexibility in pricing the products that are sold to customers, or make other business decisions.

    Also beware of basing your judgment on a single court case unless you are a lawyer or a paralegal. Often there are extenuating circumstances that are unique to that case, that don’t apply in your situation. Again, you can certainly file an overtime complaint with the California DLSE. They will investigate and determine whether you are an exempt employee under California law or not. HTH, and thanks for reading the blogs!~ Amelia

74. Posted by: Faith B.

    Hi! I wanted to know what are my legal rights in this situation:
    I’m a nurse and I was wrongfully terminated by my Director who happen to not like anyone including me! She took my 2 week notice to change from days to nights and explained to me that she was going to honor that as my 2 week notice because she doesn’t think I was a right fit for the job! Never mind the fact that just 3 months prior she just gave me an A+ on my total evaluation and gave me a nive raise. I spoke my opinion concerning an issue we had and she didn’t like that and 2 weeks later I’m out the door. I obtained my total employee file and it states I’m non- rehireable. But according to her statements in my unemployment file “I quit voluntarily”! So what do I do about applying for other jobs?? What do I do that she lied?? I’m in Michigan and were “At Will”. The handbook that I signed clearly states that it does not indicate a contract between us… what do I do? what are my rights? She’s such a mean and nasty person I can see her doing the non rehirable thing after I had a letter wrritten by an attorney to obtain my records in a timely manner. What do I do??

75. Posted by: Amelia

    Hi Faith! Sorry, but we may not be able to help you much. It seems that the employer perceived you as a difficult, demanding employee. Demanding the day shift and hiring an attorney to get a copy of your employment file support that view. Naturally any employer would make such a person non-rehirable.

    (We have to ask: what, exactly, did you gain by getting a copy of your personnel file? Other than making the employer angry and making yourself nonrehirable?)

    We have no doubt that this director was hard to get along with. But other employees somehow managed, and remain employed. If you gave the employer notice that after 2 weeks you would no longer be working the night shift, you did quit. Employees usually aren’t allowed to dictate the hours that they will work. In most states, this situation does not meet the legal test for wrongful termination. (If you still disagree, you can certainly hire an attorney to sue the employer for wrongful termination. But we doubt that you will win.)

    There is no employment law that deals with the issue of being rehirable or non-rehirable. This is entirely up to the employer’s discretion. The question is simply, “If you had it to do all over again, would you hire this employee today?” Your employer is answering “no”, and they have every right to do so.

    You are caught between a rock and a hard place because it is never a good idea for a job applicant to bad-mouth her previous employer. Even in the most innocent situation, it makes the employee look like she is hard to get along with. If the issue comes up in the interview, you need to say that you left over a misunderstanding, or it was simply time to move on.

    Your best bet is to try to find someone else at that organization who will give you a positive reference. If that doesn’t work, then try giving the HR department as a reference — often they will only give a neutral reference, and that is the best you are going to get from this employer. (Have a friend call to check your references, just to be sure.) Otherwise, your best bet is to rely on past jobs for good references, or to go to work for a temporary service that will give you a positive reference after a few months. The good news is that nurses are in high demand, so it may take a year but you should be able to find another job. In many industries, this type of behavior would have been the kiss of death. HTH, and thanks for reading the blogs!~ Amelia

76. Posted by: Faith B.

    Thanks Amelia, maybe I should have taken more time to explain my situation. I was instructed to write the 2 week notice to change shifts, per HR because that’s the policy. I actually bid on a job, got it, my Director signed and agreeded to my shift change. It was after I had already worked my six “12″ hour shifts, to complete my notice that she inturned called me while at home on my day off and told me that. I also asked for my employee file nicely, after waiting almost 4 weeks, I did obtain legal assistance. I only wanted to know why I was fired. The unemployment investigation even was in my favor because I wasn’t the one who initiated the seperation. I just don’t understand how someone can fire you and then lie to unemployment to say I quit so they don’t have to pay, and then label me non- rehirable as if I’m a bad person. I have never been in any disciplinary positions, I’ve never been fired from anywhere. I’ve been a nurse for 10 years! I’ve never had any warnings or “talking to’s” up until the one incident where I was suppose to allow my director to be disrepectful and down right unprofessional by telling me that ” I need to teach my husband to do more” after learning that I spent my UNPAID lunch doing homework in the lobby with my son. To me that was a personal “jab”. How I spend my personal time isn’t her business. So I did say to her. ” I actually like spending time with my children.” I don’t see them for days at a time when I work as much as I do so it’s OK with me if they have to drive 20 minutes to see me for 20 minutes. She just gave me “The look”. She stop speaking to me, and two weeks later I was fired on my day off. Basically she’s a big bully and threatens to fire people on the spot daily. She creates a hostile environment on purpose. The turn over is horrible. I just figured if I stay outta her way I’ll keep my job, well I suppose that day I was in her way. How can she get away with that?

77. Posted by: Amelia

    Hi Faith! Thanks for explaining — that makes much more sense. You don’t mention which state you are in, but most states have the “employment at will” doctrine, which means that any employer can fire any worker at any time for any reason, or for no reason at all, with or without notice. So that’s how you could be terminated.

    We agree that after you got into a verbal disagreement with the supervisor, she took the first available opportunity to terminate you. While her personal attacks were unjustified, we have to say that most employers would not permit children to visit on work premises during the parent’s break. It is the employer’s prerogative to set such policies. So while her attacks were personal, she had a point. (We will also say that even when a supervisor launches unprovoked personal attacks, two wrongs don’t make a right. Attacking back is usually not the best policy. In this case, if you had acted in a more mature way than she did, it is possible you would still have a job. You won the battle, but she won the war.)

    It sounds like this director is immature and vindictive, but you will encounter many poor managers in your career. Learning to handle them is a basic job skill.

    It is good that you won unemployment benefits on appeal, but it does not prove that you were right in this situation, and it is not likely to impress potential employers with your innocence. Even bringing it up makes you look as if you are hard to get along with.

    Just so you will know, in most states you do not have any legal right to your personnel folder — they are business records belonging to the employer. And frankly, you have little to gain by demanding a copy of them. This case is a good example. You are actually worse off with the personnel file than without it, because you are now non-rehirable — and that information is likely to be shared with interviewers.

    Unfortunately, there is nothing unlawful about threatening to fire people, and this does not meet the legal definition of a hostile work environment. Any time an employee is at odds with her supervisor, she is likely to be terminated. HTH, and thanks for reading the blogs!~Amelia

78. Posted by: Kathy

    Hello again Amelia,

    We have an employee who was incarcerated on the January 1st, 2010 for a violent assault against another person and has not been to work since nor do know how long he will be incarcerated. This is employee has accrued 50 hours in vacation time and 25 hours in personal time for 2010, but has not been an active employee in 2010. My question is, are we legally obligated to pay out his accrued vacation & personal time if he is to be terminated.

    Thanx!

79. Posted by: Amelia

    Hi Kathy! You may be surprised to learn that you can terminate this employee for absenteeism, but not for the arrest. This is because theoretically the employee is innocent until proven guilty. (After his conviction, you could terminate him.) While we understand that this employee is probably guilty, remember that innocent people are arrested and “incarcerated” every day. As an employer, you cannot assume that arrest is the same as guilt.

    Vacation pay in Kentucky is a matter of company policy, not employment law. As you may know, Kentucky labor laws do not require that the employer pay workers for unused vacation at termination. So you should follow your usual company policy on this matter. Since this exact situation has not come up before, you could certainly implement a company policy that an employee must work at least one day during the current year to be eligible for vacation pay at termination.

    If your employees are covered by a union, then obviously the union contract takes precedence. HTH, and thanks for reading the blogs!~ Amelia

    Read more about this at: http://www.labor.ky.gov/ows/employmentstandards/faq.htm

80. Posted by: Kathy

    Amelia,

    Would we be required to pay out any unused vacation for an employee who is being laid off?

    Thanks!

81. Posted by: Amelia

    Hi Kathy! You are not necessarily required to pay a laid off employee for unused vacation in Kentucky. There are two issues here — state law and the employer’s policy or past practice. Kentucky state law does not require that an employer pay workers for unused vacation at termination. (Several other states including Illinois, California and Louisiana do.)

    However, in Kentucky as elsewhere, if the employer has a written or unwritten policy of paying vacation at termination, or has a past practice of paying for unused vacation at termination, then the employer must follow that policy until it is formally changed. The issue here is illegal discrimination.

    Suppose you have always paid employees for unused vacation at termination. If you terminate Josie today and refuse to pay her for unused vacation, she can file a lawsuit claiming illegal discrimination based on race, color, age, sex, etc. and will probably win. To avoid this, you would need to pay Josie for her vacation and then issue a new written policy that employees will not be paid for vacation at termination. (Some employers pay workers who are laid off or quit, but not those who are fired for misconduct. Some paid employees who give two weeks’ notice, but not those who quit with less notice. All these policies are lawful in Kentucky as long as they are in writing and applied to every employee.)

    Note that even in states that require payment for unused vacation, the employee is entitled only to the vacation that they could have used on the last day of work. HTH, and thanks for reading the blogs!~ Amelia

    Read more at: http://www.labor.ky.gov/ows/employmentstandards/faq.htm

82. Posted by: Kristi

    I live in Oregon and our next scheduled payday will arrive on a Sunday. Can my employer wait till Monday to give us our paychecks or are they required to pay us on Friday?

83. Posted by: Amelia

    Hi Kristi! No, this is probably not legal in Oregon. Under the state wage payment law, the employer can establish any payday they like, but must pay workers on payday. In this case, employees could be paid on Sunday, or they could be paid before Sunday. But the employer cannot lawfully withhold wages until Monday. We will add that with computers and FedEx, there is no reason for an employer to be unable to meet payroll. Usually when the employer tries to delay payday, it is due to cash flow problems with the business.
    We suggest that you immediately call the Oregon Bureau of Labor and Industry. One quick call from their representative will probably change the employer’s mind about paying workers on time. If you are not paid on Sunday, you should file a wage complaint with the BOLI. That will discourage the employer from doing this again. HTH, and thanks for reading the blogs!~ Amelia

    Read more about this at: http://www.boli.state.or.us/BOLI/TA/T_FAQ_Tafinpay.shtml

84. Posted by: Andy

    Here’s a twist:
    President of my company (in PA) announced a 10% reduction in salary with no change in hours for every individual (exempt and non-exempt) below the senior management levels, which were cut even more. The cut is to be imposed for a period of 3-4 months (with fuzzy description of exactly when/why salary would be reinstated). At the end of the year the total amount withheld is to be issued as a lump sum (with terms like “should” and “if” tossed in with regard to the sales forecast).

    Not nearly as draconian as some of these other posts, but is it legal?

85. Posted by: Amelia

    Hi Andy! Yes, this is a legal reduction to salary for exempt and non-exempt employees. An employer can reduce an employee’s salary at any time, as long as the employee is informed before the work is performed. As long as the salary is still above $455 per week, the employee can be exempt.

    Ironically, salary reductions for exempt employees are more of an issue when they are accompanied by a reduction in the number of hours worked. When the salary is reduced but the hours remain the same, there is really no issue unless the new salary is below $455 per week.

    The employer is right to qualify their intention of paying a year-end bonus for 2010 equal to the lost wages. There is no legal requirement that the employer must do so. They are showing good intentions by making this suggestion, but employees should not rely on it. From a financial perspective, employees need to adjust to the fact that they are now earning 10% less, and that reduction may be permanent. HTH, and thanks for reading the blogs!~ Amelia

86. Posted by: Kathy

    Hi Amelia,

    We have a situation that I would like your help on. Our company has a shutdown week at the end of the December where production employees do not work. During this shutdown week there was a very violent confrontation between several people (2 of which are company employees) that happened off of company property. This situation lead to one of our employees being incarcerated, and the other employee being hospitalized. These two employees work in the same department, within eye view of each other. The employee who was assaulted has been released from the hospital but has a doctor’s statement which does not allow him to return to work. This situation is currently under police investigation and the assaulted employee has obtained legal council. The other employee who was involved in the assault has been released from incarceration but is charged with a 2nd degree felony assault and is to come before the grand jury shortly. His last hire date was in 2006 and has had some problems in his work history. We feel that this employee is a threat to the safety of not only the assaulted employee but also to others. We feel that he is a risk to have on company property. The assaulted employee has worked here since 1999 with a good work history. We are not sure how to handle this situation.

    Thanks for your help!

87. Posted by: Amelia

    Hi Kathy! You are right to be concerned about this situation. This is the type of scenario that can easily erupt in fatal workplace violence, and not just for the employees involved — for innocent bystanders as well. While there are two sides to every story, it sounds like there is clear evidence on who is the aggressor in this case. Obviously, you do not want violent employees in the workplace.

    The employee who was assualted was in the hospital. That means by definition he has a serious health condition and is eligible for FMLA, unpaid leave under the federal Family and Medical Leave Act. You should immediately issue FMLA papers to this employee and inform him that his time off is covered by FMLA. This protects you from a discrimination complaint by the aggressive employee when he is terminated.

    If the aggressive employee missed work due to incarceration, those were unexcused absences. He is not elibigle for FMLA — incarceration is not covered by that law. You can terminate the employee due to unexcused absences.

    If the agressive employee did not miss any scheduled work days due to the shut-down, that is a more complex problem. There are several possible responses, but we suggest that you terminate him as soon as possible, before the victim returns to work. As an employer, you can assert your right under “employment at will” and terminate this employee without giving any reason for the termination to him or to the unemployment agency. The employee will qualify for unemployment benefits, but that is the least of your worries at this point. It is much more important to keep all of your employees safe.

    An employee can also be terminated for making threats against or committing a violent act against another worker, at work or away from work. This is not subject to the same tests as a court case. If the victim says, “Joe Blow threatened me and hit me” and you believe him, you can terminate “Joe Blow.” However, be aware that if there are credible witnesses that both employees threatened each other, that can leave you in a precarious legal position. So we recommend an “at will” termination.

    As we mentioned before, you cannot terminate this employee due to an arrest. You could suspend him without pay, until after the trial, and put him back to work if he is found innocent. We do not suggest that because there is still the potential for additional violence.

    You should strongly encourage the victim of the assualt to get a restraining order against the aggressive employee. (This is called an order of protection in some states.) This judge’s order will prohibit the aggressor from being within a certain distance (maybe 100 feet, or 300 feet) of the employee. This restraining order will make it impossible for the aggressive employee to work at the same facility as the victim. If the aggressive employee shows up for work, he is in violation of the restraining order and you should call the police to escort him off the property. After a few days, you will terminate him for unexcused absences. He will probably not qualify for unemployment benefits.

    Note that there is no law that requires you to reassign the aggressive employee due to a restraining order, and we do not recommend it. Everyone at your workplace will be much safer if this employee is gone.

    When terminating the aggressive employee, you need to be as diplomatic as possible. Have several witnessess present. Tell him the decision has already been made to end his employment and that unfortunately, there is nothing that you can do about it. Also let him know that unfortunately, you cannot allow former employees on company property at all. Have several large people immediately escort this employee to his car and wait until he is off the property. (Take whatever steps necessary to return his personal property, such as cutting the padlock on his locker or packing up items on his desk and mailing them to him.) Get his address so his final check can be mailed — you do not want this employee on the property ever again, for any reason.

    Be especially wary during this process. In a number of recent shootings, the employee has gone to the car, retrieved a gun, and returned to the workplace to shoot employers or coworkers. If you are concerned about this, consider having police officers present in the parking lot. However, be aware that the presence of police may also incite the aggressor to more violence.

    If the employee returns to the property at any time in the future, you need to immediately dial 911 and assume that he is armed and has violent intentions. Every supervisor needs to be aware of this procedure. Better safe than sorry. Also check OSHA’s guide for preventing workplace violence at http://www.osha.gov/SLTC/workplaceviolence/. You need to make the company premises as secure as possible, possibly keeping doors shut and locked or changing the locks.

    This is a complex situation, and we suggest that you consult an attorney before making a final decision. Remember that this does not constitute legal advice. HTH, and thanks for reading the blogs!~ Amelia

88. Posted by: Jennifer

    Hi Amelia,

    I just had a quick question regarding payroll errors. We had an employee who received another employee’s pay check on his pay card by payroll error. We cut the employee that did not get paid a paper check. The employee admitted to getting the money on his card and spending it.Is it legal for us to withdraw his whole pay check until we collect the funds that were given to him in error.

89. Posted by: Amelia

    Hi Jennifer! This depends upon which state the employee is in.

    Due to a payroll error, Leon was paid wages that should have gone to Tatiana. Let’s look at the two employees separately. Tatiana was not paid. You were correct to cut her a payroll check immediately.

    Leon was overpaid, and it sounds like he was overpaid substantially. In most states, this would legally be considered an advance against future wages. In other words, if Leon was paid an extra $2,000 last week, he was paid in advance for the next $2,000 he earns from this company. In those states, you could legally make a deduction to his paycheck for the entire amount of the check, until that $2,000 was paid back.

    If this deduction was for any other purpose other than an advance payment, it would be illegal under federal law. That’s because federal law requires that the employee be paid at least minimum wage for the hours worked in that payroll period. But in this case, under federal law, Leon was paid more than the minimum wage, and he was paid it in advance.

    In California, you would not be able to recover the amount. Payroll errors are the responsibility of the employer, and cannot be recovered from employees in most cases in California. Other states would also limit this deduction, so you might want to post another comment and mention your state.

    Some employers would handle this differently, especially if this is a long-term, valued employee with good performance. In that case, the employer might pay the employee the minimum wage each week, and deduct the remainder of the paycheck until the overpayment is repaid. HTH, and thanks for reading the blogs!~ Amelia

90. Posted by: Vanessa

    Thank you for posting to this blog Amelia. I have learned so much! Can you please explain in plain English the “administrative production dichotomy” in the office enviroment? My staff is small (under 10) and we are in California. I have 2 employees with the title manager and 5 with the title coordinator. The managers are exempt, the coordinators are not. I have an employee who has the title manager and feels she is not exempt because she feels she on on the production side. We are an association that creates networking events and her job is to plan the events. She does not sign contracts and has to clear any ideas through me and or the committee, and does not directly supervise any of the staff. This is why she feels she is not exempt.

    I believe she is exempt because she does assist me at times, she meets the wage test, and I do not manage her time. She works on what she wants to work on. I do not account for her time. I also need clarification on the term “discretion and independent judgment” What are your thoughts?

91. Posted by: Amelia

    Hi Vanessa! Sorry, but we have to side with the employee on this one — she does not fit the California definition of an exempt employee, which is more rigorous than the federal definition.

    Job titles have nothing to do with whether an employee is exempt or not. You could call all of your employees managers or call all of them dogcatchers, for that matter. Their exempt/non-exempt status is determined by their primary duties, not the title.

    An administrator must exercise discretion and independent judgment in order to be exempt. “Discretion and independent judgment” generally means making decisions that have a financial impact on the organization, without permission or oversight. For example, a purchasing agent who decided which vendors to use and what price to pay for supplies, would be an exempt administrator. A purchasing agent who merely phoned in orders to approved vendors, and had to get permission to switch vendors (or have that decision approved) would not be an exempt employee.

    It sounds like you think this employee should be exempt because you do not micro-manage her time. However, this is not sufficient control to make an employee exempt. (If it were, you would simply allow all of your coordinators to go to lunch at their preferred time, and avoid all overtime.)

    If this manager had the unilateral power to decide which venues to use, and what prices to pay for goods and services, with the power to sign contracts, she would be an exempt employee. But she does not, so in our best opinion she is a non-exempt employee.

    In California, an exempt employee also cannot be involved in production. This is a gray area at your organization — a good lawyer could make a strong case that this employee is involved in the production of the services (networking events) that your organization sells. Our advice in California is always that the employer err on the side of caution. Even if you “win” a lawsuit with the DLSE, it could cost your association over $100,000 in attorney’s fees. Our advice is that you consult the DLSE or an attorney specializing in employment law. Unless they agree that this employee is unquestionably exempt, you should treat her as a non-exempt employee.

    Having said that, if you change this employee to non-exempt status, there is no requirement that you keep her at her current salary. Suppose she earns the equivalent of $20 per hour as an exempt employee. If you change her to non-exempt, you could pay her $10 or $12 per hour, plus overtime, as long as she is informed of the change well in advance. There would be no need to change her title or duties.

    Another option, of course, would be giving this employee more independent decision-making authority so she meets the requirements of an exempt employee. HTH, and thanks for reading the blogs!~ Amelia

92. Posted by: Kathy

    Hi Amelia,
    In KY, how many hours can an employer require an exempt salaried employee to work? Maximum? Minimum?

    Thanks!

93. Posted by: Amelia

    Hi Kathy! It’s nice to hear from you again!

    Neither Kentucky nor federal law limits the number of hours that an exempt employee can be expected or required to work. This is true of almost every state. It is up to the employer to establish the expected work week for an exempt employee. An exempt employee who does not work the expected hours in the work week can be disciplined or terminated.

    One of the major ways that employers are saving payroll dollars during the current financial crisis is by requiring exempt employees to work more hours, even filling in for hourly employees.

    An exempt employee who works any portion of the day must be paid his or her entire salary for the day, even if the employee comes in late or leaves early. However, the employer can discipline or terminate the employee for not meeting the performance expectations by working the expected hours.

    Employers are also free to establish the maximum number of hours that an exempt employee can be required to work. Or, as one of our favorite Department of Labor lawyers puts it, the maximum is 168 hours per week. That’s 7 days x 24 hours per day. An employer can legitimately require an exempt employee to work 60 or 70 hours (or more) per week, every week. In a few industries, exempt employees are often expected to work 120 or more hours per week. Any expected work week is legal in Kentucky and most other states. The only exception would be if the exempt employee is covered by a union contract.

    Some examples:

    Tina’s employer hired her with the understanding that she would be a part-time exempt employee. Tina usually works 25 hours per week, however occasionally Tina works 40 or 50 hours in a single payroll week. Tina is not entitled to any extra compensation when she does so.

    Robb’s employer expects exempt employees to work at least 40 hours per week. One week, Robb came in late one day and left early another day, working only 38 hours in the payroll week. Robb’s employer must pay his full weekly salary, but can discipline or terminate Robb for not working the expected hours.

    Ted’s employer expects exempt employees to work 55 hours per week. Ted usually works 60 hours per week or more, and is not entitled to any additional compensation when he does so. One week, Ted works 5 days but only 40 hours during the week. Because Ted is not taking time off under FMLA or ADA, he can be disciplined or terminated for not working the expected hours.

    Note that the employer should have similar expectations of exempt employees in like jobs. Expecting one accounting manager to work 67 hours per week while another person with the same job is expected to work 40 hours per week would likely be illegal discrimination. HTH, and thanks for reading the blogs!~ Amelia

94. Posted by: Jeff

    Hello-

    I and my co workers went through all of 2009 with a 20% pay cut. At first we were told we could take 1 day a week off. This was retracted during the first week probably because of the “worst case scenario” you describe above.

    As we enter 2010 a question occurs to me.

    If the pay cut is permanent would any future pay increases coming to us be based on our current lower salary or would the employer more likely keep us at this lower level permanantly?

    Also do we need to agree to the pay cut every year or since we agreed the one time does that meet the legal requirement for the company permanantly?

    It sounds like I will have to leave the company to ever get more pay.

    Thank you.

95. Posted by: Amelia

    Hi Jeff! When an employer reduces an exempt employee’s salary, in order to be lawful, that reduction must be permanent. In this case the legal definition of “permanent” is that the salary reduction must last at least 3 months. However, we will say that in the current economy, the more common definition of “permanent” is permanent.

    There is no need for the employee to agree to the “wage reduction” annually. In fact, there is no annual wage reduction. The employee’s wages were changed, once and for all. Some employers have the intention of restoring wages to their previous level if and when the economy improves. In some cases, this is impossible because company revenues are still down. Any future increases would be based on the employee’s current (reduced) salary.
    Before you quit your current job, be aware that according to SHRM the average exempt employee has taken a permanent 25% pay cut since 2007 — and that survey only counts people who are employed. The unemployed have had a 100% pay cut, many of them for 2 years or more.

    If you feel you are underpaid, by all means test the market by looking for a higher-paying job. But our advice is that you keep this job until you find a better one. HTH, and thanks for reading the blogs!~Amelia

96. Posted by: Kathy

    Hello again,

    Apart from manufacturing furniture we also have a separate trucking company. I wanted to get your opinion on something. Sometimes our truck drivers take along a passenger on their trips (usually a family member). We are currently reviewing and updating this policy. We have a wavier which each driver and passenger must sign before taking a trip. Our wavier states, that the passenger and family members relieve our companies from any and all responsibility. We haven’t had problems before but we want to make sure we are covered if anything should happen. I am also discussing this with our insurance company and attorney but would really like your opinion. Would having a wavier protect the company if and incident were to happen? Even if it was our driver’s fault? Is there anything that we need to make to state on the wavier? Would you recommend having an age limit for the passengers? Would you even recommend allowing the drivers to have passengers on their trips?

    Thanks!

97. Posted by: Amelia

    Hi Kathy! The important point to keep in mind is that there is no waiver in the world that will protect you if a court finds that the company was in any way negligent. Suppose the brakes fail on the truck and the passenger is injured or killed in an accident. Despite the waiver, this is your responsibility and the company will be financialy liable. As you have noted, even if the driver is distracted by the passenger and that causes an accident, your company may be liable for that action by one of its employees.

    A waiver also won’t protect you from legal fees. Suppose in the first example, the heirs sue you, claiming that the company was negligent. Even if you win the suit, you could easily spend $100,000 or more in attorney’s fees. If your insurance company is willing to pick up that cost, then it’s okay. But in many cases, you as the employer would be responsible for those fees because the victim was not an employee.

    Our advice would be to not allow passengers unless your insurance policy will cover them at a reasonable cost. Allowing passengers probably improves driver morale; you have to balance that benefit with the cost of providing insurance for the passengers.

    Issues like this are why many companies outsource their trucking and transportation needs. Ultimately we will defer to your attorney on this issue. He or she knows a lot more about your business situation. HTH, and thanks for reading the blogs!~ Amelia

98. Posted by: Kathy

    Amelia,

    In our handbook it states: “Paid personal time will be used before any unpaid time off is granted. Any unused paid personal time will be forfeited at the end of the year.”

    We have a salaried supervisor who has a history of chronic absenteeism, coming in late, leaving early, leaving after working 1-3 hours, stating that she is sick. This situation had been addressed last year and improved, however this habit is occurring again. Salaried supervisor worked 7-10am, then sent an email stating she had the stomach bug and was going home. Realizing that she is to receive a full day’s pay. Legally can we burn 4 hours of her personal time she has available to her? (She will still receive full paid, just be docked personal time).

    Thanks!

99. Posted by: Amelia

    Hi Kathy! Yes, in Tennessee you can reduce an exempt employees personal time, sick time, vacation or paid time off when she works less than a full day. (In California, this would be unlawful.) We assume that this employee is not entitled to time off under FMLA or ADA. You are correct that you must pay the exempt employee’s full salary for that day, because she worked part of the day.

    If the employee was supposed to work 8 hours, and left after 3 hours, you can charge her for 5 hours of personal time.

    However, if you take this action against only one employee, that could well be illegal discrimination, even if that was not your intention. Suppose this employee is the only Hispanic supervisor, or one of just a few female supervisors. Other supervisors who work a partial day are not required to use sick leave or personal time. This would have the effect of creating worse working conditions for the female or Hispanic supervisor, compared to other supervisors. So if you do this with one employee, you must also do it with all exempt employees who work a partial day.

    We would recommend that you take an additional step. An employer has the right to set the expectation for the number of hours an exempt employee works each week. You can set a standard that exempt employees are expected to work 40 hours or 50 hours or whatever, each week. An exempt employee who does not meet that expectation can be disciplined or terminated. We would suggest that you write the employee up for not meeting your minimum performance expectations. After three writeups, she would be terminated for poor performance.

    When an attendance problem has gone on for this long, it seldom improves permanently. HTH, and thanks for reading the blogs!~ Amelia

100. Posted by: Kathy

     Sorry that post was from me. In your response you said that this was allowed in Tennessee but I want to make sure it was allowed in Kentucky also.

     Thanks!

101. Posted by: Amelia

     Hi Kathy! Yes, this is legal in Kentucky also. ~ Amelia

102. Posted by: Kristin

     Hi Amelia- ok, now I am totally beating a dead horse. I explained the production/administrative dichotomoy to my boss and explained to her why I feel I am not exempt and we should correct it. She says she took it to a lwayer who never responded to her. So, today she tells me she is switching my exemption status effective the next pay period only becuase she will spend more money fighting me in court. I asked her about retro and she says she does not owe me retroactively because I am really exempt, she just doesn’t have attorney fees in the budget. I am in california. I know you said to file a claim. My question to you is- By her changing my status after my inquiry, doesn’t that show that I have been exempt since my duties have not changed?

103. Posted by: Amelia

     Hi Kristin! No, her switching you to non-exempt does not prove anything. It is legal for an employer to treat any employee, even the CEO, as non-exempt.

     Apparently, the employer’s position is that your duties genuinely qualify you as an exempt employee. However, beginning the next pay period they will treat you as a non-exempt employee and pay overtime. That is entirely legal. Any employee CAN be paid overtime — it’s just that some employees MUST be paid overtime. Currently, you believe that you belong in the latter group and your employer believes that you belong in the former group.

     We are not surprised that no back pay is mentioned. An employer almost never voluntarily pays back pay for overtime. Why should they, unless someone forces them to? Our advice is still for you to file a wage claim with the California DLSE. If you were genuinely an exempt employee and not entitled to overtime, they will tell you. If you are entitled to overtime, they will give the employer the choice of paying you back wages or being sued. Any smart employer would choose to pay the back wages. HTH, and thanks for reading the blogs!~ Amelia

104. Posted by: Kathya

     Ameila,

     Are we required to keep up-to-date driver’s licenses for employees who are citizens, for I-9 purposes? They are office and production employees. If so, are we also required to let employees know that their license will expire, like we do with work authorization cards?

105. Posted by: Amelia

     Hi Kathya! The first thing we need to say is that it is illegal discrimination to treat employees who are not U.S. citizens differently from those who are citizens. This type of discrimination seems to be at the heart of your question. You cannot have one set of standards for office employees who are mostly U.S. citizens, and another set for warehouse employees who are almost all immigrants. Just wanted to clear that up.

     There are a variety of different documents that any employee can use to prove identity on the I-9, including a driver’s license, passport, work authorization card or other document. The employer cannot dictate which document the employee will submit. So if an employee submits a passport, you cannot require a driver’s license instead, for I-9 purposes.

     However, yes, the document on file must be unexpired. So whether the employee submits a driver’s license, work authorization card or passport, if it expires, you as the employer are in violation of this regulation. Yes, you should inform employees when their identity document is going to expire, and take pains to obtain a copy of the new document, regardless of which type of document is submitted. HTH, and thanks for reading the blogs!~ Amelia

106. Posted by: Kathy

     Ameila,

     If we had employees who were terminated for false documentation, do we still give them their W-2? We have many employees who have called to change the address that they were going to be mail to, but I’m unsure if we are still obligated to give them W-2′s knowing that the documents that they presented were false and that they are not this person.

     Thanks!

107. Posted by: Amelia

     Hi Kathy! Every employee is entitled to a W-2, so even employees who have subsequently been fired for improper documents must receive one. The best practice would be to have every employee complete a new W-4 and address update each year. Usually these are completed in early December for the following year — for example, in December 2009 the 2010 W-4 is completed. You should mail the 2009 W-2 to the address on the 2009 W-4. (By law, this should have been done in January.) If an employee calls to say that they did not receive the W-2, then you can mail a duplicate copy of the W-2 to the new address.

     Presumably, the undocumented workers were using someone else’s name and mailing address. Sending a W-2 to the original address will alert the victim to the fact that someone else is fraudulently working under thier name. As an employer, you have no responsiblity to protect employees who break the law.

     W-2s also go to the IRS, so if an undocumented worker has been using someone else’s social security number, the victim will find out when he or she files a tax return. However, if you genuinely believe that these former employees were engaging in identity theft, then you should report them to the police. They will most likely want both addresses for their investigation. HTH, and thanks for reading the blogs!~ Amelia

108. Posted by: Kathy

     We have mailed out all the 2009 W-2′s to the address we had on file on 12/31/2009 but we have got many returned back to us by the USPS. Some of these are former employees who were terminated after their documents were ran through E-verify and the information did not match or we received a letter from the IRS stating that information given to us was false and they are not really this person. I was asking this question because many former employees have come to pick these up or called in Jan.2010 to change their address. So even if we know that the person we are hand/mailing the W-2′s to is not “John Smith” we still must give them “John Smith’s” W-2? I just want to make sure before we mail the returned W-2′s to the address given by the former employee or we hand them to people who we know are not the person listed on the W-2. Also what if one of these former employee (who were terminated because they presented false documentation) come in and want a duplicate copy of a previous years (2007) W-2? Do we still give them a duplicate even if the original was mailed out and not returned to us? Sorry, I’m just trying to cover all basis.

109. Posted by: Kathy

     Amelia,

     What would be the best way to promote good hygiene without being discriminatory? A lot of of our employees come from 3rd world countries and their hygiene is now becoming an issue with other employees. We plan to have a meeting with every department to refresh everyone on some of the regulations that aren’t being followed or enforced like they should be and wanted to address hygiene also. But did not want to discriminate anyone, how would you suggest to go about this? The upcoming meeting is about a variety of rules and will be with every department within the company.

110. Posted by: Amelia

     Hi Kathy! This is a very common problem — and you are handling it in exactly the right way by having a general meeting. You don’t want to single out any employee or any group of employees for this discussion.

     Instead, have a meeting and talk about other policies and procedures (maybe tardiness and absenteeism.) Then bring up the dress and hygiene code. Remind everyone that this is important because it affects their coworkers (and customers if that applies to your business.) Use inclusive language such as “we all need to be aware of our personal hygiene…” Remind everyone that the expectation is that they will take a bath or shower each day, using soap and deoderant, and putting on clean clothes afterwards. They need to keep their hair and nails clean and neatly trimmed. They should brush their teeth twice per day and use mouthwash. Men should shave daily, or (if you allow them) keep beards neatly trimmed. For someone who perspires a lot, it may be advisable to use a light cologne or aftershave. Stating the expectations this explicitly should go a long way toward solving the problem. (Many people think “good hygiene” means taking a bath or brushing their teeth once a week. )

     By having this conversation with every employee at a meeting, you are avoiding discrimination. After all, you do expect ALL employees to practice good hygiene.

     Unfortunately, there is no perfect solution to this problem. If a problem persists a few weeks after the meeting, a same-sex manager may need to have a private conversation with the employee. Some employers prefer to do this by leaving the employee a note, if that is feasible. HTH, and thanks for reading the blogs!~ Amelia

111. Posted by: Amelia

     Hi Kathy! Re: The W-2s, you should still be okay with giving or mailing out new ones, because the person who worked for you is the person who is entitled to a W-2 from you. However, let me do a little more research on this and get back to you. HTH, and thanks for reading the blogs!~ Amelia

112. Posted by: Kathy

     Ameila,

     Regarding hygiene, we have some employees that do not understand English. We normally hire a translator to ensure the employees understands what we are trying to get across. Would it be discriminatory if we still had a meetings through out the company with every department but also had a group meeting with those who do not understand English and a translator, separately? I’m asking this because there are many different languages in our company.

113. Posted by: Amelia

     Hi Kathy! The ideal solution would be to have all of the employees at the same meeting. If you want to have all the employees from one department at the same meeting, that is fine. You (or another manager) would speak in English and the translator would translate your words into as many languages as necessary. This is the best practice in HR for companies where employees do not speak English. It ensures that everyone is hearing the same information. It costs a little more, because everyone will attend a 1-hour meeting instead of a 30-minute meeting. But that is much less expensive than one discrimination lawsuit.

     You could have one meeting for all employees who speak English, one for Spanish speakers, one for Italian speakers, etc. However, you should have a written agenda and discuss the same items at each meeting, to avoid discrimination. So even if you do not know of any Italian-speaking employees with hygiene problems, you need to discuss it in the meeting. Again, this avoids the claim of illegal discrimination based on different working conditions for different groups.

     Yes, by having separate meetings of non-English speakers, it creates the appearance that you are illegally discriminating against employees based on their country of origin — that you have one set of standards for native speakers of English, and another for other employees. This is bound to create resentment between the two groups, and lower employee morale for the non-English speakers. Having this sensitive discussion with all the employees at the same time (even if you have to pause periodically to have it translated) makes it clear that you have the same standards for all your employees.

     A long-term solution to this problem would be to hire employees who can understand spoken English, or to hire at least one employee (or ideally, manager) who is bi-lingual in each language. For example, if you have employees who speak Hmong, you would hire one line supervisor who is fluent in Hmong and English. In the future, he would serve as a translator. (Obviously, this employee is more skilled than others and should be paid a little more.) It is not usually a good long-term strategy for an employer to have workers that no one can communicate with. HTH, and thanks for reading the blogs!~ Amelia

114. Posted by: Kathy

     Hi Amelia were you able to research more on the the W-2′s?

115. Posted by: Amelia

     Hi Kathy! We checked with a number of HR pros (and social security, but they have not gotten back to us yet.) You are obligated to provide a W-2 to the person who performed the work for you. If you mailed a W-2 to the address on file, it is okay for you to also mail a duplicate copy to the employee’s new address. This is true, whether or not the original W-2 was returned.

     W-2s are sent to the IRS and Social Security, as well as to the worker. So, if a worker has used someone else’s social security number, it should be fairly easy for the victim to discover this. But again, if you have reason to believe that one of your ex-employees is guilty of identity theft, you should contact the police. HTH, and thanks for reading the blogs!~ Amelia

116. Posted by: lynn

     I am an exempt salaried employee from West Virginia. Is it legal for my employer to take away my vacation time for the 2 days our building was closed due to weather conditions? they also gave us the option to take leave without pay? is there even such a thing as LWOP for salaried exempt employees? i worked 1 full day and 2 hrs on another day that week (the 2 hrs worked was because they shut our building down and made us leave due to the weather) i had no control over this i feel we should get paid for the full week… please help as our employer does this alot to us…

117. Posted by: Amelia

     Hi lynn! Both you are the employer are right. Under the federal FLSA, or Fair Labor Standards Act, an exempt employee who works part of the payroll week, and is ready, willing and able to work the entire week, must be paid his or her usual salary for the week.

     However, the employer can dictate when employees use their vacation time. So the employer can legally pay you for the week, but deduct 2 days of vacation from your balance, for the two days the business was closed. The FLSA requirement for payment addresses the total amount of money the employee receives. It does not address whether that time will be counted as vacation or not. (There is no state or federal law that requires employers to give paid vacations to workers. If the employer offers paid vacations to workers, the employer sets the policies for them.)

     The employer is actually trying to be generous by giving you the option of taking unpaid leave instead of using your vacation time. Of course Leave Without Pay or LWOP applies to exempt employees. FMLA is leave without pay and often employees are granted LWOP under ADA. In this option, you would inform the employer that you were not “ready, willing and able” to work on those 2 days. Because you would be taking those two days off for personal business, the employer could legitimately prorate your salary for the week. Some exempt employees would prefer this solution, because it would allow them to use their paid vacation at a later date. Other exempt employees would prefer to be paid for that time off, even if it results in them having fewer vacation days in the future.

     If an exempt employee had no vacation days available, and the business was shut for a portion of the week, the employee would still be entitled to his or her usual salary for the week. HTH, and thanks for reading the blogs!~ Amelia

118. Posted by: Miguel

     Hi,
     After almost 12 years with our Company we (5 exempt employees) suffered not one but several percentages of salary reduction in different occasions, this is went up and down (2009) at least six different times and know again at least once this year (Feb 12, 2010). We have been treated (I think) as non-exempt and exempt workers during these almost 10 past months (2009-2010). During 2009 reductions, it was mentioned that all reduced percentage accumulated will be reimbursed by the end of that same year and this never happened. During this 2010 and last 2009 year we never received a written notification of any of all reductions, all of them where verbal and only one of them (second of six) was a day before the reduction, the other five were the same day at least one hour prior of the paycheck delivery, reduction percentages went from a 20 to a 50%, this 2010 year we started in February with a verbal agreement to have a temporary reduction (no time range defined) on salary for all of us of a 10%, but when we were ready to receive our 90% paycheck a verbal notification of a 50% paycheck was informed with no promise of reimbursement of the rest (50%) anytime at all. We are in Texas, Is this kind of payroll payments are lawful? If so, why it is lawful? If not what do you recommend doing?

     Thanks,
     Best regards.

119. Posted by: Amelia

     Hi Miguel! We recommend that you contact the TWC, the Texas Workforce Commission, as soon as possible. No, these types of fluctation in salary are not lawful. This is not even a salary reduction. It is non-payment of wages, which is illegal under the Texas Payday Law.

     A Texas employer can legally reduce your salary, but you must be told before you perform the work that the salary will be reduced. Example: Suppose you are told on Monday that beginning Tuesday, your salary will be $500 per week instead of $600 per week. This is completely legal.

     But if we understand your post, in your case when payday came, you were paid only 50% of the original salary, or $300 in our example. This is completely, 100% illegal. Texas employers must pay all wages promised, and they must pay them on payday.

     In addition, under federal law, an exempt employee’s wages cannot vary from pay period to pay period. Any salary reduction must be for at least 3 months. We agree that you are not being treated as exempt employees and are probably due overtime.

     Contact the TWC at http://www.twc.state.tx.us/ as soon as possible. They will investigate and force the employer to pay the wages and overtime you are owed. HTH, and thanks for reading the blogs!~ Amelia

120. Posted by: Miguel

     Hi Amelia, well almost immediately I received this answer from the TWC, I felt more vulnerable than I tought we were as an exempt employee, what do you think about this answer? and do you think we can have any other option to make our paydays better (even with a fixed reduction) a not a “suprise-day”

     I replied him with this:
     “Hi David, me again. This happened again today, we are receiving our payroll checks and a minute later we received and e-mail that mentions that our pay will be 50%. Is this some kind of our company not wanting to pay us (avoiding) instead of defined that we are no longer exempt employees and we move to an hourly status. We are not in agreement with this reductions in any way and we think this is not the correct way of doing it (reductions). Your previous reply surprise me about how vulnerable we are as an exempt employee, is any paragraph on the Payday Law that creates or ensures a stronger protection to the employee against this kind of situations?

     Thanks again for your great help.
     Best regards.”

     Mr. Vega:

     Thank you for your message to the Texas Workforce Commission (TWC). TWC’s Labor Law section administers the Texas Payday Law, which assists employees in the recovery of their unpaid wages. According to the Texas Payday Law, an employer is obligated to pay wages for all time worked in accordance with the pay-rate agreed upon by the parties on the scheduled, posted paydays.

     The payment agreement can be oral or in writing. Under this law an employer can change an individual’s pay – increased or decrease – or change their job duties, as long as notification is given to the employee prior to the changes taking effect. (The law does not specify how far in advance the notice must be given.) These changes can also be oral or in writing. Normally, by continuing employment under these new conditions, the employee implies agreement.

     These changes however, cannot be retroactive since for there to be an agreement both parties must be aware of the conditions before they occur.

     If you believe your employer has paid you incorrectly, you can file a wage claim with this agency. Your wage claim would then be investigated under the provisions of the Payday Law.

     HOW TO FILE: Our web page at http://www.texasworkforce.org/ui/lablaw/lablaw.html offers detailed information about the Texas Payday Law, and there is a downloadable claim form at http://www.twc.state.tx.us/ui/lablaw/ll1.pdf. Wage claim forms are also available at most full-service Texas Workforce Centers. The Texas Payday Law states that the employee who files a wage claim must do so within 180 days after the date the contested wages were due for payment.

     MAILING ADDRESS: You must submit the wage claim form by regular mail to: TWC Labor Law Section, Room 124T, 101 East 15th Street, Austin, Texas 78778. You can send any additional information, questions, or correspondence to the Labor Law Section by fax to (512) 475-3025, or by regular mail to the address above. We regret that currently we do not handle claim correspondence or status information by e-mail.

     If you have additional questions regarding the Texas Payday Law call our Public Information line toll-free at 1-800-832-9243/TDD 800-735-2989 (within Texas only), or call the main number 1-(512) 475-2670. Office hours are 8:00 a.m.- 5:00 p.m., Monday through Friday. After office hours, our automated telephone system can answer many of your questions.

     Thank you for contacting TWC.

121. Posted by: Amelia

     Hi Miguel! Actually, the TWC is saying exactly the same thing that we already told you– your employer can reduce your wages, without your permission. However, that reduction cannot be retroactive. Meaning, it cannot apply to the check you receive today, only to your next paycheck. You need to follow the instructions to file a wage complaint with the TWC. Anything else is just spitting into the wind. Until you file a wage complaint, the TWC cannot do anything.

     The TWC is correct that when the employer informs you of the wage reduction, and you continue to work, you have accepted the lower wages.

     The employer can also change your status permanently to non-exempt employees, and pay you only for hours worked. However, again, if you are informed today, that change can begin tomorrow. But it cannot apply to the paychecks issued today, for time worked last week.

     That’s really all there is to it. You can file a wage claim with the TWC, or you can let the employer continue to do this. The choice is yours. HTH, and thanks for reading the blogs!~ Amelia

122. Posted by: Kathy

     Amelia,

     Did you ever hear anything else about the W-2′s? Also I had another question, we have many former employee who are returning to apply for jobs, some of these are employees where terminated about 5 years and are not re-hirable. I would think that they were told that they were not re-hirable at the time of termination but we had a different staff back then, so I’m not sure. Legally are we allowed to tell a person that they are not re-hirable? Also are we obligated to give them specific reasons on why this decision was made, if they ask? I’m sure the former employees know why they were terminated but they still ask.

     Thanks!

123. Posted by: Amelia

     Hi Kathy! On the W-2s, you are allowed to send the documents to a new address, that was not on the original 2009 W-4. As an employer, failing to provide a W-2 to an employee or former employee is a violation of the law. The employee is the person who worked for you.

     There is no law that would prevent you from telling a former employee that they are non-rehirable. This is a judgment call. Many HR pros would sidestep the issue. People tend to become belligerent when they are told they will not be hired, or that they are not rehirable. Sometimes the worker even becomes violent under these circumstances. The safest course would simply be to take the application and never call the worker back. If they call repeatedly, you can tell them that you are still interviewing or that the position has been filled.

     Going into specific reasons why the employee is non-rehirable will often result in confrontation, and sometimes the employee will become violent. It is better simply to sidestep the issue. HTH, and thanks for reading the blogs!~ Amelia

124. Posted by: Kristin

     HI Amelia,

     I have a question about liabilty. I use my personal vehicle to drive for work related errands. We are compensated at the AAA mileage rate. During one of my trips of about 300 miles, my car broken down and I incurred the cost of about $2,000 for repair plus towing. My terms of employment state I must keep valid car insurance and drivers license. I am in california. I am not a driver by profession. Is my employer legally obligated to help with the cost of the repair?

125. Posted by: Amelia

     Hi Kristin! No, even in California the employer is not responsible for your car repairs, even if the car happens to break down while being used for business.

     When the employer pays a specific amount per mile, that rate is intended to include gas, oil, and normal wear and tear on the auto. So in a sense, the employer has already paid his or her portion of this car repair — they pay it every time they reimburse you for mileage. The AAA rate takes into account the total cost per mile of operating a vehicle over a period of years — including maintenance. HTH, and thanks for reading the blogs!~ Amelia

126. Posted by: Katherine

     Hi Amelia,
     What great blog you have here! I have several questions.

     1) I am an exempt employee in California, I work a 45 hour weekly schedule. I read elsewhere that my hourly rate would have to be at least double minimum wage to be exempt, but at 45 hours a week, it isn’t. Am I “exempt”?

     2) We have a combination of paid and unpaid holidays, I am supposed to make a certain amount per year, but I don’t because of the unpaid holidays. Is that normal and/or legal?

     3) We are required to adhere to a very specific and strict dress code, we have to purchase specific suits and specific outerwear, we were told that it is called a dress code now, when it used to be called a uniform. The requirments are exactly the same. Is this normal and/or legal?

     Thanks!
     Katherine

127. Posted by: Amelia

     Hi Katherine!

     Thanks for the kind words! To answer your questions:
     1) Our reading of the California code is that an employee must be paid at least (40x2x minimum wage = weekly salary) to be exempt. Once that minimum salary requirement is met, the exempt employee can be required to work any number of hours in the week without additional payment. However, you may want to call the DLSE, the California Department of Labor Standards Enforcement, to have them make a decision on your specific job.

     2) Yes, this is normal and legal. Although salaries are often stated in terms of annual earnings, the legal requirement is that employees be paid for the time they work. (However, note that as an exempt employee, you should be paid your full salary for the week, even if the place of business was closed for one or more days, as long as you were ready, willing and able to work on those days. If your salary is prorated during weeks in which the business is closed for a holiday, you are being treated as a non-exempt employee, and you are entitled to overtime.)

     3) Under California law, the employer must pay for uniforms. It appears that the employer is trying to skirt the law (ha-ha) by calling a uniform a dress code. If you cannot wear any suit or outerwear except that provided by the company, and it has a distinctive design, then it is probably a uniform. Contact the DLSE about this, and they will enforce it. HTH, and thanks for reading the blogs!~ Amelia

     Read more about exemptions at: http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

128. Posted by: Kathy

     This is regarding I-9 documentation. In the USCIS Handbook for Employers (M-274), it states that an Alien Registration card/Permanent Resident card or a List B document does not need to be re-verified upon expiration date. I just want to make sure I’m understanding this correctly. So when these documents are expired do we need to inform the employees? Do we need the employee to present documentation that is not expired? What is the procedure for an expired Alien Registration card/Permanent Resident card or a List B document? What about when an employee gives us a D.L. and a S.S. card for their I-9 documentation, do we need to keep the D.L. up to date? I’m a little confused.

129. Posted by: John

     I was offered a 12 week severance package on Feb 15 and told that my job has been terminated in a larger reduction in size of the organization. I was also told that this had nothing to do with performance. I was working in this Director role for 13 years and many but not all directors were terminated. At the same time in the same discussion I was offered a job in another department as a cost savings analyst. I had 24 hrs to make up my mind. I took this position due to the unempoyment in the country and also to have benefits. I worked in this position for 7 or 8 days and did find cost savings. I was out for a walk prior to work a few weeks ago and broke my ankle. I also had a back injury that has required multiple surgeries over the past years that was work related. My question is that I have many sick hours that has been banked at a much higher rate than current due to I have worked for this org. for 37 years. They did pay me sick time at my new rate. Is that the correct way or is there a formula that applies? My back part did not play into this injury except trying to better myself by walking and getting my back to move with as much pain in the morning. Again I have only taken time for the back whenever a surgery was needed. The new rate is about a 60% reduction but I still would have a hard time finding a job in this area at this time. They put someone in my old position full time that worked directly under me and the title is acting Manager. Is that also something they can do?

130. Posted by: Amelia

     Hi John! This is a difficult situation, but your employer seems to be acting in a legal and ethical manner.
     Except in California, there is no law that benefits such as vacation and sick leave must be paid at the rate the employee was earning when they were accrued. In most states, this is a matter of company policy, not state or federal law. It is standard operating procedure for the benefits to be paid at the employee’s current rate. (By the same token, if you had recently been given a salary increase, you would not expect to be paid sick time at your old rate.)
     You are right that your work-related injury doe snot relate to this situation.
     The reduction in force seems legitimate, since the employer laid off almost all the directors at the same time. Just so you know, it would also be legal for the employer to lay you off, and promote your former employee to the position of director at a lower salary than you were earning. So this is a difficult situation, which many employees are facing, but the employer has not done anything illegal or unethical. HTH, and thanks for reading the blogs!~ Amelia

131. Posted by: Amelia

     Hi Kathy! Many employers misunderstand this aspect of the I-9, but you are correct. Documents used on List B to establish identity need not be reverified when they expire. The reason is simple. These documents are used to establish the employee’s identity. If the employee’s identity was established at hire, it has not changed — even if the employee’s driver’s license has expired. By the same token, a U.S. Passport, Passport Card, Permanent Resident Card or Alien Registration Reciept Card does not need to be reverified when they expire. A permanent U.S. resident is, well, permanently approved to work.

     Despite this, many employers require that workers submit new documents with current expiration dates. This may be lawful, as long as the same rules apply to all employees. There is no need to nag employees about renewing their dirver’s license unless their responsibilities include driving.

     Other documents need to be reverified before the expiration date. If an employee is working on a temporary permit or student permit, and you allow him or her to work one day beyond the expiration, you are intentionally employing an undocumented worker. HTH, and thanks for reading the blogs!~ Amelia

132. Posted by: Kathy

     Amelia,

     When an employee’s work authorization card expires, can they submit a D.L. and S.S. for their I-9 documentation? Or must it be a new work authorization card with a current expiration date? And are we required to run this information through e-verify again (we run all new hires through e-verify). I just want to double check my information.

     Kathy

133. Posted by: Kathy

     Amelia,

     Also when we are re-verifying these do we need to keep the older copies? I know we keep the one from the time of hire.

     Kathy

134. Posted by: Amelia

     Hi Kathy! To be on the safe side, you should keep all the copies, to show that there was no lapse in eligibility or documentation if you are audited. HTH, and thanks for reading the blogs!~ Amelia

135. Posted by: Amelia

     Hi Kathy! As an employer, you cannot specify which documents an employee may submit for the I-9, as long as they choose from among the acceptable documents. So yes, an employee whose work authorization card expires may submit a Driver’s License and Social Security card rather than a new work authorization card. (And a recently naturalized citizen may be very proud to do so!) Of course the usual standard applies — you will verify that the documents appear genuine and appear to relate to the individual.
     However, the regulations state that the employer will reverify employment authorization documents upon expiration. So whether the employee presented a new work authorization card or a social security card, you would reauthorize it. HTH, and thanks for reading the blogs!~ Amelia

136. Posted by: Kathy

     Amelia,

     I want to get your thoughts on a subject. We have an employee who is a salaried supervisor who was on probation last year August – December because of attendance and poor job performance. They were told should this behavior occur again, they would be terminated and replaced. We placed a confidential ad in our local paper for the position. Employee saw the ad and is suspicious about their position. The employee is now requesting a “non-negative” letter of reference for her attorney by the end of the day. We know that negative information cannot be released but we have not been contacted by the attorney nor have they provided attorney’s information. We were thinking of writing a “To whom it may concern” letter, verifying their position and dates of employment. What are your recommendations on how to proceed?

     Kathy

137. Posted by: Amelia

     Hi Kathy! This employee is bluffing. There is no law that any employer has to provide a letter of reference for any employee, at any time. She is simply using this tactic to imply that she will sue you if she is terminated. She probably does not have an attorney, and even if she did, no attorney can compel you to give her a letter of recommendation (which is what she most likely wants.)

     You are correct that you should give only neutral information to any prospective employers who contact you for a reference on this person. For this employee, you should err on the side of caution and refuse to provide any information to interviewers. You can verify the position, salary and dates of employment, but refuse to answer any other questions. (In many cases, giving such a reference has the same result as giving a negative one, because most employers realize that this is a sign something is wrong.) If you are asked more questions, simply repeat, “I’m sorry, I cannot answer that question.”

     Assuming that her absences were not for any reason covered by FMLA or ADA, you are justified in terminating her, although you do not indicate that you have done so yet.

     As an employer you have done nothing wrong. It is completely ethical and legal for you to run any employment ad at any time, whether you have an opening or not. You could even interview candidates while this worker was still employed. You are simply covering your bets, so that if her attendance does not improve you are not left understaffed. There is nothing wrong with this.

     Nevertheless, this person sounds like she is the type to sue you for discrimination or wrongful termination, even if she does not have a good case. Unfortunately, it can cost tens of thousands of dollars for the employer to defend themselves in court, even if she loses. Therefore, we suggest that you follow through with your plan to write a “to whom it may concern” letter verifying her job title and dates of employment. (The employee probably does not realize it, but such a letter will be almost useless in a job search.) This is more than you have to do, but perhaps it will satisfy this employee. Do not allow the employee to manipulate you into providing any additional information on the letter. HTH, and thanks for reading the blogs!~ Amelia

138. Posted by: Kathy

     Amelia,

     On the same topic. The HR manager was in the process of eliminating another position within the company. The employee who was in that position was capable to replace the transportation supervisor. The HR manager mentioned to the other employee that the current supervisor was not meeting job requirements and offered the job to that employee confidentially (the employee was not told that their position was going to be eliminated at the time). However the employee declined the offer, his position was later eliminated and that employee was laid off. After the employee was laid off, the employee told the current transportation manager that he was interviewed for the position and that the company was probably going to replace them. Any suggestions?

     Kathya

139. Posted by: Amelia

     Hi Kathy! Not really. This is an unfortunate situation, but it is not a legal or ethical violation. Again, the transportation manager seems to assume that anything the employer does to fill her position before she is terminated is disloyal or underhanded. That is not true. An employer has the right to protect their business by being proactive in the hiring process.

     A lot of this problem could have been avoided if the HR person or supervisor had simply told the transportation manager, “We hope you are able to solve your attendance problems. But just in case you are not, we are going to place a job ad.” There is nothing illegal or unethical about making such an announcement — but it is also legal and ethical to place a confidential ad. It may be a bit naive to assume that the ad will remain confidential.

     As long as the transportation manager was fired for objective performance problems (such as absenteeism) we see no problem with this termination.

     The unfortunate part is the way the job offer was handled. It would have made more sense to explain to the other employee that his position was being eliminated, and then ask him if he would be interested in the position of transportation manager if it became open, without discussing the current employee’s performance.

     Just as employees cannot always expect that their HR complaints are confidential, management should not expect employees to keep secrets from one another — especially disgruntled employees. It would have been reasonable to expect that this would get back to the current employee. HTH, and thanks for reading the blogs!~ Amelia

140. Posted by: Darío Cabrera

     Hi, The company I work for, is reducing salaries 20%, our boss discount hours for travel time, even using our own vehicles, don’t pay for gas and nobody reaches more the 30 hours weekly, doesn’t pay overtime, and is paying us one week yes, two weeks not, next week just one check, without give us notice, I’d like to know how lawful is all what he’s doing, and in case we can do something about it , what that can be, and also, where I can be well informed about laws protecting subcontractors, this situation it’s going on for about six months and have caused to people damages on credit, losing rental apartments, and etc. Please let me know what are our choices, desperation is our main state of mind, waiting for your advice, sincerely:
     Dario

141. Posted by: Amelia

     Hi Dario! This is a bad situation, and our best advice is for you to concentrate on finding a better job. But don’t quit until you have one, because jobs are hard to find right now.

     The problem here is that you are a subcontractor. The laws that protect employees generally do not apply to subcontractors (also known as independent contractors.) For example, if you were an employee, the employer would have to pay you on payday, every time. However, a business owner can legally wait months or years to pay an independent contractor — and they might never be paid at all.

     Even for employees, it is legal for the employer to reduce wages. Employees only need to be paid overtime when they work more than 40 hours in the payroll week, and you say everyone is getting only 30 hours. The federal regulations regarding travel time are complex, but often employees must be paid for travel from one locaiton to another during the work day, even if the employee uses his own car. But none of those rules apply to independent contractors.

     It may be that the employer is misclassifying you as an independent contractor, when you are actually an employee. If the employer controls when, where or how you work, and you are prevented from working for other clients, then you are most likely an employee. Both the states and federal government are cracking down on employers who misclassify employees as independent contractors. Your best bet is to contact your state department of labor or the U.S. Department of Labor at http://www.dol.gov, to see if you qualify as an employee. And, as we suggested, look for a better job. HTH, and thanks for reading the blogs!~ Amelia

142. Posted by: Sam

     If you are on call and paid for pager time then called back in pa is that 1 1/2 or time and a half pay or can they tell you to take the time off in the 40 hr rule at regular hours?

143. Posted by: Amelia

     Hi Sam! There is no law that an employer must pay time-and-a-half for on call time. The employer can send you home early during the week. As long as you do not work more than 40 hours in the payroll week, you are not entitled to overtime. HTH, and thanks for reading the blogs!~ Amelia

144. Posted by: Kathy

     Our company is entering our slow season. If we do not have enough runs for all of our drivers and a driver has 120 vacation hours available to him, is it illegal to make the driver use his vacation time before he can claim unemployment? The driver will only be off 1 week but does not want to use his vacation time. In our handbook, it states that all available time must be used before any unpaid time is granted. Could we lay off the driver and have his available vacation hours paid out accordingly?

     Thanks!

145. Posted by: Amelia

     Hi Kathy! Yes, as an employer you can dictate when employees will use their vacation time. This is legal in every state including California. Many employers routinely do this. For example, a factory or dental office may shut down for two weeks in July. Employees are required to use their vacation during that time. Although many employers allow workers to scheduled vacations at their convenience, there is no law that requires this.

     By requiring that the employee use his vacation during this time, you ensure that he will not collect unemployment during this one-week layoff. (Although many states have a one-week waiting period anyway.)

     Laying off the driver and paying out his vacation at termination will not solve this problem. Many states ignore lump sum payments when approving unemployment benefits. Even worse, this will establish the precedent that you always have to pay workers for vacation at termination. Instead, you should continue to carry the employee on payroll, simply paying him each week as vacation pay.

     The policy in the handbook is really irrelevant, because it refers to unpaid time at the employee’s request, not unpaid time for the employer’s convenience.

     You should simply inform this employee that he is on vacation for the next week or next few weeks. Be aware that you will be required to do the same for every other employee, in order to avoid illegal discrimination. The employee may be concerned about taking time off in the future. For example, he may need a week off later in the summer to attend an out-of-town wedding. This problem can be addressed if you let the employee know that he can take that time off unpaid. HTH, and thanks for reading the blogs!~ Amelia

146. Posted by: John

     On Easter Sunday, management cut of padlocks on employee lockers for no reason, they did this when everybody was off for the holiday. we are a union and of the course the union stepped in and the company said they had the right to cut of locks because it is the company’s property. i feel this is illegal, and in the contract they must have a reason and a the employee & a union rep. when the lock is cut off. Can you clarify this situation for me. Thanks from Colorado

147. Posted by: Amelia

     Hi John! Under normal circumstances, the union rep is correct. The employer owns the lockers. They have the right to cut the padlocks off and inspect the lockers at any time under Colorado law. This would be like somebody hiding illegal drugs, porn or stolen jewels in your refrigerator and telling you not to open the door. Of course you can open the door — it’s your refrigerator.

     However, if the employer has agreed to a union contract, then generally the employer must abide by that union contract. If the contract genuinely says that the employer must have the employee and a union rep present when they cut the padlock off and inspect the locker, then the employer should abide by that agreement. However, we will point out that such an agreement is extremely naive. An employee could put a bomb in a locker and leave the premises. Because the employee was not present, in your scenario, the employer could not inspect the locker for bombs.

     We cannot comment on the legality of this particular case. You would need to consult an attorney for that. However, we will say: You are probably not hearing the whole story. Most employers would not take this action on a holiday when everyone was off, unless they had a very good reason to do so — like a report of a bomb or guns in the lockers. Second, you should always regard a work locker as a public space and not keep any private materials there. HTH, and thanks for reading the blogs!~Amelia

148. Posted by: Ann

     Hi,

     I’m a salaried exempt retail manager in California and have three questions:

     1) I was terminated from my position yesterday afternoon (Monday) after having been put on suspension last Wednesday for policy violation. When I received my final paycheck today, I noticed that my company prorated the paycheck and paid me for only about half a day on Monday. By my reading of the labor law, employers can prorate a salaried exempt employee’s paycheck for the first and last weeks of employment, but they can only prorate in days, not hours. Is this correct? If so, is it the company’s minimum requirement to at least have paid me for a full day Monday, if not for the rest of the payroll week?

     2) All managers within the company are required to work a 45 hour work week (9-6 everyday with a 30 minute lunch). However, paychecks have always been cut based on a 42.5 hour work week. I was under the impression that as a salaried exempt employee, breaks cannot be deducted from pay. Is the company doing anything wrong here?

     3) Does a salaried exempt manager in CA have to supervise at least two full-time employees, or just the equivalent of two full-time employees (ie. 80 hours of labor)? My company has always claimed the latter, but I’m curious about what the law actually says.

149. Posted by: Amelia

     Hi Ann! Sorry about the loss of your job, but the employer seems to be acting appropriately here.
     1) Prorating partial days is a gray area under California law. However, the employer could have put you on disciplinary suspension beginning Thursday and not paid you since then. So we see nothing improper here.

     2) And? The employer is simply keeping an accurate payroll record of hours worked. Since the salary for 45 hours is exactly the same as the salary for 42.5 hours, it makes no difference.

     3) It is supervising the equivilant of two full-time employees. A manager who supervised 100 employees, each of whom worked 10 hours per week, could be salaried. HTH, and thanks for reading the blogs.~ Amelia

150. Posted by: misty

     -i need to know if it is legal for an employer to cut my pay (which is 450.00 a week) just beacuse i will no longer drive my car to go canvassing. which is going door to door setting appts..i did this last summer and i was having to get my oil changed every months and i had to pay for gas out of my own pocket after the owner’s wife told him she was giving me gas money for driving my car. my orginal job was telemarketing over the phone then it went from that to canvassing 3 days a week. which he tells us where to go, and i have set hours. which are suppose to be to start with 9-3 but now it is 9-3:30. which i dont get overtime pay if i have to work over past 3:30. but i do get docked if i am out. and because i decided that i was not going to mile my vehicle to death and get nothing in return they are docking my pay. is that legal?

151. Posted by: Amelia

     Hi misty! That depends. Under federal law, it would be legal for the employer to offer you a salaried or hourly job at a rate that works out to less than $450 per week. However, the employer would be required to pay overtime when you work more than 40 hours per week.

     You cannot be paid as an exempt employee because your current salary is less than $455 per week. So you are entitled to overtime.

     There is no law that the owner must pay you the same wages this year as he did last year. If the owner promised you a certain rate before you started working, he must pay you that wage for each hour worked. He cannot reduce the promised wages for a few days because your car is not available. However, he can fire you because you cannot do the job of canvassing door-to-door, or he can offer you a different job at a lower rate.

     It was not clear from your question if you have already been promised a certain wage for this year, or if you just assumed you would be paid the same as last year. You should definitely mention to the employer that you are not being given gas money.

     This answer might be different under state law, but since you don’t mention your state…Feel free to post additional questions to clarify. HTH, and thanks for reading the blogs!~ Amelia

152. Posted by: misty

     i live in NC and as for the pay. when i first started i was only working 3 days a week and when i went to 5 days a week i was told that i was going to get 450.00 a week plus commission on any sells as long as i worked 5 days a week. it was NOT in my orginal job decription to canvass. i was to come in to the office and call. and then we later decided to go canvass to get out of the office. but there was nothing said about me having to use my own vehicle or nothing was said. and he knows that i am not being paid for gas,milage or anything.. Should he by law have to pay me for mileage or reinburse me for anything for me using my vehicle to benefit them?

153. Posted by: Amelia

     Hi misty! No, in North Carolina there is no law that would require the employer to reimburse you. It sounds like you have an agreement that if you work 5 days a week, canvassing out of the office 2 days per week, you are paid $450. The employer would have the right to fire you or to pay you less if you do not canvass outside the office. HTH, and thanks for reading the blogs!~Amelia

154. Posted by: Cathy

     Hi!! I am exempt employee of a medical facility. We are in the midst of a HUGE project..NOT my department’s project..and I was asked to work on the project. In addition to working my normal hours in MY department, I worked many hours on the HUGE project..and have now been told (after the fact) that I will NOT get paid for those hours, because I am exempt. IF you are exempt in ONE department, does that AUTOMATICALLY make you exempt for ALL departments?

155. Posted by: Amelia

     Hi Cathy! Yes, an exempt employee is exempt for every department, for the same employer. An exempt employee could work 50 hours per week in his or her own department, and another 50 hours per week in a different department, and still be entitled only to his or her usual salary. This is true, even if the job in the other department would usually be done by an hourly employee. This probably should have been clarified before you agreed to the additional work. HTH, and thanks for reading the blogs!~ Amelia

156. Posted by: Kathy

     Amelia,

     I would like to get your suggestion on something. Employees check tools out of our supply department and are suppose to return these tools upon termination. We have started to run into a problem where the employee will quit and not return these tools. Our first thought was to deduct the replacement cost from their final check but according to another website we cannot withhold or deduct any wages from an employee’s paycheck for failure to return these tools. Do you have any suggestion on the best way to handle this legally? We direct deposit all of our payroll, so if we had the employees sign a document at the time they check out the tools, stating that they agree to us deducting the replacement cost from there paychecks, would be allowable? I know we can always take them to small claims court? I’m just trying to see what all of our options are for this problem.

     thanks!

157. Posted by: Amelia

     Hi Kathy! This is one of those issues that might not have a great solution. Laws on deductions from payroll checks are state-specific. In your state of Kentucky, the law does not allow any deduction for tools, period. Not even with the employee’s written permission. You could have the employee sign a statement that the value of tools would be deducted from their paycheck, but it would merely be an intimidation tactic. Actually deducting it or holding the employees final check until the tools were returned would be illegal in Kentucky.

     Even taking the employee to small claims court is iffy. The employee can simply say that he or she lost the tools or that they were stolen. Under the law, you cannot charge the employee for lost or stolen tools, or any tools, period. Many judges would say that supplying tools for employees to use is a normal business expense.

     To put this in perspective, you might want to figure the total annual cost of lost tools. If it is $5,000, that is a significant expense. But if it is $150, that might be something you will just have to live with.

     You could issue tools each day, and check those tools back in at the end of the day, so the employee is not taking the tools home. This might cost you more in payroll than the occasional lost tool is worth, but it would presumably prevent the loss of tools. If an employee did not have the tools at the end of the day, again, you could not charge the employee for the lost tools. But you could discipline or terminate the employee for poor performance (losing tools).

     In some occupations, such as plumbing or building maintenance, you can require that employees supply their own tools. However, if these are specialized tools for your industry, that is not an option.

     If you are issuing multiple tools and they are expensive, one solution would be to offer a bonus to terminated employees who return the tools. We bet if you offered a $100 bonus to any employee who returned the tools, you would always get them back. This would be legal, and if the tools cost $500 to replace, and most employees fail to return them, this is a good deal for the company. If

     The best solution may be for you to simply issue tools to each employee, and accept that occasionally an employee will not return the tools. You could consider this a normal operating expense. Like we said, there are HR problems that have no perfect solution, and this is one of them. HTH, and thanks for reading the blogs!~ Amelia

158. Posted by: Greg

     I have worked in a small business for 13 years now. The owner has been generous in givng me raises over the years and bonuses due to my hard work. I think I make pretty well in what I do than most.
     He is now selling his business to people that is in the same line of work from a different city and wishes to keep the already established business with the same employess. I’m very thankful to keep my job!
     I fear that the new owner will cut my wages due to the fact he doesn’t pay his employee at his other business the same amount, due to the job title. Is this possible?

159. Posted by: Amelia

     Hi Greg! Yes, it is possible. But it was also possible that the previous owner could have cut your wages at any time. This is true, regardless of your title.

     The new owner purchased this business because he liked the way it operated. If the business was profitable, we would assume that he would not want to make major changes. So our suggestion to you is to hope for the best and prepare for the worst, just so all the options are covered. Your first tactic will be to work hard to show the new employer that you are worth every penny you are being paid.

     An employer can reduce any worker’s wages at any time, as long as the employee is notified at least one day in advance. (A few states require more advance notice.) If that happens, you will have a choice to make. If you quit rather than accept a significant reduction in salary, usually you will qualify for unemployment benefits. However, if you work under the new salary for even one day, and then quit, you will not qualify for unemployment. So you need to decide now how you will handle that situation.

     This would also be a good time to begin sending out resumes or applying for other jobs. You may decide to stay with the present company, but that will give you more options. Still, try to remain positive and not borrow trouble. HTH, and thanks for reading the blogs!~ Amelia

160. Posted by: Stephanie Richard

     I am an Exempt Employee making a salary pay. I went out on family medical leave act on May 5th,2010 (left my job early May 4th) FMLA has a two week waiting period to collect. I was only paid 10 hours for working Monday, May 3rd and part of Tuesday, May 5th. With the FMLA waiting period, I was only paid for 3 days for FMLA. 2 weeks I was not paid.

     Is my employee required to at least pay me my full salary pay for the week I left early? I can understand the 2 weeks of unpaid during the FMLA waiting period. However, Id think for the week I at least was there I should get paid for? How am I on salary when now due to this I wont be getting the complete salary pay for the year? Please advise.

161. Posted by: Amelia

     Hi Stephanie! Unfortunately, no, the employer is not required to pay you for the two weeks.

     First of all, we need to correct a misunderstanding. FMLA is unpaid. There is no two-week waiting period for payment under FMLA, because it is always unpaid. Your employer may offer short term disability payments to an employee who is on FMLA, but that is an entirely separate issue. Most people on FMLA receive no payment at all, even if they are out of work for 12 weeks.

     Many short term disability programs do not pay for the first two weeks.

     That also answers your second question. If you had worked only 10 hours one week because business was slow, the employer would have to pay your entire salary for the week. Usually a salaried employee who works any portion of the week, must be paid for the full week. However, FMLA is an exception under this rule. When a salaried employee takes time off under FMLA, it is unpaid. (Different rules apply in some states such as California.)

     There is no law that an employer must pay a salaried exempt employee his or her entire salary for the year. Only that the employer must follow the law regarding salary payments. HTH, and thanks for reading the blogs!~ Amelia

162. Posted by: Stephanie Richard

     Thank you!

163. Posted by: Amelia

     You are very, very welcome Stephanie. We’re here to help with your HR questions. ~ Amelia

164. Posted by: Kathy

     Hi Amelia,

     I have yet another question that I need your advice on. One of our employee is passing out often due to them being epileptic. This happens often more so in summer than winter. Most recent episode was yesterday and we sent her home early. We have never received a doctors note from her with restrictions or work recommendations. She just informed us of her condition yesterday after her episode. This has happened approx 4 times this year, and her current job position is as a Machine Operator. As you can see this can be dangerous for her and the company should she have a fainting episode or epileptic seizure. What are your suggestions on how we should accommodate her? We were thinking of maybe getting recommendations from her doctor, but were sure if this was even allowed due to HIPAA? Us being a manufacturing plant, production areas are normally very hot and staying alert at all times is extremely important because of the heavy machine use. Please let me know your suggestions.

     Thanks!!

165. Posted by: Amelia

     Hi Kathy! You’re right, it would be both a HIPAA violation and illegal discrimination against an employee with a disability for you to contact this employee’s doctor, even with the best intentions in the world. Please do not do that, under any circumstances.

     There are three issues here: Worker safety, FMLA and disability.

     Your first duty is to provide safe working conditions for this employee and her coworkers. You should NOT let this employee return to work until she has a release from her doctor stating that she is physically able to do so. As an employer you have the right to require such a release any time you have reason to believe that an employee is physically unfit for work. Frankly, we are shocked that an employee could pass out at work and you would NOT require such a release before allowing her to return. But apparently that has happened three times this year.

     If this employee passing out poses a risk to other workers, then you will need to address that separately, taking steps to ensure their safety. (Post another question if that’s the case.)

     Since your company has more than 50 workers, this employee may qualify for FMLA. You need to inform her of her rights under FMLA in writing, within 5 days. The partial day that she missed should be counted as FMLA, even if it is covered by sick or vacation time. This will limit the total amount of time the employee can take off.

     Epilepsy may be a disability under ADA, although it is not always a disability under ADA. The Americans with Disabilities Act requires that you provide reasonable accommodations to an employee with a disability, unless they are an undue hardship. Your first step needs to be to establish whether this employee has a permanent disability under the ADA definition, at this point. You can suggest that the employee provide have her doctor send you information. See more about disabilities at http://www.eeoc.gov.

     It is up to the employee to request the accommodation under ADA, not up to the employer to suggest it. In fact, if you suggest or unilaterally impose an accommodation, you may be guilty of illegal discrimination based on disability.

     When the employee returns to work, she needs to sit down with HR and her supervisor in a private office. The conversation should be relaxed and open. Let her know that you are not mad at her for having a seizure at work, and she is not in trouble. Tell her the company is willing to provide “a reasonable accommodation” to an employee with a disability such as epilepsy, but that it is up to the employee to tell you what she needs, rather than up to you to dictate it to her. Also let the employee know that you need a plan to keep her — and the other employees — safe at work. First, she will need to ask her doctor to provide evidence to you that she has a disability under ADA. She can work while this info is being provided.

     Once disability has been established, speak to the employee and schedule a follow-up meeting two or three days later. Tell her to spend the time thinking about what accommodations she needs to perform her job. Avoid using phrases like “we will do whatever it takes to accommodate you”. She may decide that she needs a helicopter to fly her to work every day. That would NOT be a reasonable accommodation under ADA — it would be an undue hardship on the employer.

     When the employee comes back to request the accommodations, there is often a discussion process that takes place. It is up to the employee to tell you exactly what she can and cannot do. If the accommodation she requests is too extreme, you can suggest an alternate. An accommodation in this case could be anything from a cooling fan, to more frequent breaks, to reassignment to another job opening that she is qualified for. If you need help finding an accommodation, JAN, the Job Accommodation Network, is a free service that provides excellent advice.

     In some cases, the accommodation for an employee with epilepsy is to have a job partner who can make them safe during or after a seizure, and to simply let them seize. (It sounds like your employee is having a grand mal seizure, which is basically just passing out.) However, that may not be an option for a machine operator who could be injured or could cause injury to others if she passed out on the job. This is a complex issue, so feel free to post any additional questions you may have. HTH, and thanks for reading the blogs!~ Amelia

166. Posted by: Kathy

     Amelia,

     Thank you so much for the information. We will definitely handle this situation carefully. We were just as shocked as you were to find this information, HR had not been informed of this situation until now. No matter how much we have stressed the importance of notifying the proper personnel, it doesn’t always happen like it should. But thank you so much for your response and yes I will post any other questions that come up.

     Thanks!

167. Posted by: Amelia

     Hi Kathy! We were chuckling as we read your post. We were pretty sure that if HR knew about an employee passing out, it would have been addressed. The secrets that supervisors keep from HR would fill a very large book — and an interesting one! Keep us posted!~Amelia

168. Posted by: Kathy M

     Hi! I have a question regarding my employer changing my full time status to part time. I have worked in ultrasound for 30 years. I worked for our local clinic for 25 years then for the last 6 years have worked for our local independent hospital as ultrasound supervisor. I was hired as an exempt employee with wages based on an hourly rate. I don’t punch a time clock, some days working 8 hrs, some 10 hrs and once in a great while 6 hrs, you know how it goes. I have one part time employee working with me who is paid hourly, covered under the union contract. Nothing will change for her. We cover the hospital 24/7 by also taking call week nights and weekends. The hospital needs at least two people to cover this department. However, they now want to make cuts due to the economy and uncertainy of health care.
     They want to reduce my hours from 80 ppp to 60ppp, drop my supervisor status and make me an hourly employee. They tell me now that it would increase my rate of pay by 97cents as it would be based on years of experience rather then supervisor rate. (would have been nice if the hospital had admitted before this that they weren’t paying me enough!!) They say this is only temporary as the summer may get busier and by adding new doctors they may need me back to full time. However then am I locked in to an hourly employee or will my current status be reinstated? All other employees in the xray department are under union contract so their hours can’t be changed, they are only asked to volunteer to take low need day and go home.
     Changing me to part time would also drastically change my on call pay. Now I make time and a half when called in. When working part time, less then 40 hrs ppp, it would just be straight time. Also I would accrue less PTO.
     I know they will expect me to do the same job I’m doing now so why take the title away?
     I estimate my salary will decrease by $25,000 a year. Needless to say I can’t afford this. Can they legally do this? What are my options? Please advise and if I haven’t given you enough info, let me know what you need. Thank You in advance for you input. KM

169. Posted by: Amelia

     Hi Kathy! Yes, the employer can legally reduce any employee’s pay at any time, as long as the employee is informed in advance. (Some states require several weeks notice, some only one day.) An employer can unilaterally switch an employee from full to part time at any time.

     Our experience is that once these types of changes go into effect, they seldom change back, or improve. The only reason the employer would switch you back to exempt status would be to avoid paying you overtime, if you were routinely working more than 40 hours per week.

     Your two options are: 1) Accept the changes and continue working while you look for another job, perhaps a union job or 2) Do not accept the changes and quit. Usually, when an employer significantly changes the hours, salary, benefits or working conditions, and an employee quits as a result, the employee qualifies for unemployment. However, if you work even part of one day under the new arrangement, you have accepted them. If you quit after that point, you do not qualify for unemployment. So you need to make your decision and act on it before the change goes into effect. HTH, and thanks for reading the blogs!~ Amelia

170. Posted by: Cathy

     Is it illegal for an employer not to give an employee off that has been subpoena?

171. Posted by: Amelia

     Hi Cathy!
     That’s an interesting question! It depends upon which state you are in. For a complete answer, post your question on our sister site at http://www.laborlawtalk.com, and be sure to mention the state. Cheers!~ Amelia

172. Posted by: Beth

     I am finding this blog very interesting…. I am an assistant supervisor of a group home and my position is classified as exempt. I currently make 913.60 on a bi-weekly basis. I have 2 questions… 1) when I was hired 2 years ago I was hired at lower than the $455 per week that you state is minimum requirement for exempt employees. Am I entitled to back pay?
     2) the agency I work for is mandating a furlough for all positions within the bargaining unit. Even though my position is exempt, it is still within the union contract. They are issuing the furlough by sending me home 4 hrs early 2-3 days per month, and docking my paycheck for those respective pay weeks. In the union contract it does not destinguish between exempt and non-exempt employees…it uses the language “full time employees.” Is this legal…. if not… what actions should I take?

173. Posted by: Amelia

     Hi Beth! We agree that it would be unusual and probably illegal for an exempt employee to be treated this way, but not every salaried employee is exempt. It may be that you are a non-exempt employee. In that case, you would be entitled to overtime when working more than 40 hours per week, but everything else you mention would be legal.

     However if you are truly being treated as an exempt employee, then under the federal FLSA different rules apply. If your salary before taxes was less than $455 when you were hired, you were a non-exempt employee and entitled to overtime. You should file a wage complaint regarding unpaid overtime with the U.S. Department of Labor. Do so immediately, because the statute of limitations on unpaid overtime is 2 to 3 years.

     It is unusual for an exempt employee to be covered by a union contract. However, if you are truly an exempt employee, the employer must pay your full weekly salary even if you work 4 hours less that week. (A non-exempt employee can be paid only for the hours that she works.)

     This answer assumes that your agency is covered by the federal FLSA or Fair Labor Standards Act. HTH, and thanks for reading the blogs!~ Amelia

174. Posted by: Beth

     Hi Amelia, Thanks for your speedy response!

     I double checked my hiring papers….and it says at the top “exempt” under FLSA classification. I do not get paid holiday or overtime pay, I do not “clock in” or “out” or even fill out a time card. The agency I work for is a large non-profit agency that serves people with disabilities and mental illness. Everyone hired after the new contract receives less PTO, and the people hired before are impacted by the furlough. However, I am leaving in a few weeks to go back to school, and I feel they are trying to dock my pay even more and unfairly because of that.

     Could my agency not be covered by the federal FLSA? How would I be able to tell? What could be different if it is not?

     Thanks for your advice!

     Beth

175. Posted by: Amelia

     Hi Beth! Yes, if you are working for a state agency, employees of local and state governments are not covered by the federal FLSA. Then the relevant law would be the state minimum wage or wage payment laws in your state. However, many non-profits seem uninformed about employment laws, even when they are covered by the FLSA.

     It is also possible that you were considered exempt when hired, but that changed at some point. The employer is not required to inform you in writing of such a change.

     We agree that there is probably a problem here. If you were exempt you should be paid for holidays. If non-exempt, in most states you would be entitled to overtime.

     If you believe you should be covered by the federal FLSA, contact the U.S. Department of Labor to file a wage complaint at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Amelia

176. Posted by: Beth

     Amelia, Thank you so much again for all your help! I reached out to the HR department today about this concern. I was told that they are operating under the union contract, which supersedes DOL regulations. Is this true?

     Thanks,

     Beth

177. Posted by: Amelia

     Hi Beth! Um, no, the union contract does not supersede federal regulations in most cases. In fact, the federal FLSA specifically prohibits any union contract or agreement between the employee and employer that would interfere with the employee’s right to be paid overtime when working more than 40 hours per week.

     We should also note that only employees who are paid a salary, and have specific job duties, can be classified as exempt under the FLSA. Some employees (example: a plumber or carpenter) can never be exempt, no matter what the employer puts on their hiring papers. Again, that is assuming that you are covered by federal law.

     By not paying your entire salary for a week in which there was a holiday, the employer effective switched you from exempt to non-exempt status, permanently. (We assume you were ready, willing and able to work on the holiday but the office was closed.)
     Therefore, you have been entitled to overtime pay since the first time you were not paid for a holiday.

     Our suggestion is that you file a wage complaint for unpaid overtime with the U.S. Department of Labor at http://www.dol.gov. It is illegal for the employer to retaliate against you for filing a complaint. The DOL will investigate and may force the employer to pay you overtime for the past 2 to 3 years. HTH, and thanks for reading the blogs!~ Amelia

178. Posted by: Jennifer

     Hi Amelia,

     I work @ a furniture manufacturing company in Kentucky. We have an employee that has missed a lot of work because of doctors appointments, being ill, etc. Over the last year the employee has been diagnosed with Crohn’s Disease. Last week the employee came in and said that she wanted to know her rights under intermittent FMLA leave. She does not want to take off for doctors appointments just for when she is ill and doesn’t feel like coming to work. The employee is a constant complainer and has been warned several times before now about her attendance and attitude. What is your recommendation on handling this situation?
     Thank you!

179. Posted by: Amelia

     Hi Jennifer! This problem probably should have been addressed with the employee earlier, but that is water under the bridge.
     Assuming that you have 50 or more employees within 75 miles, a qualified employee is entitled to up to 12 weeks of unpaid, job-protected leave under FMLA, which is a federal law. To be qualified, the employee must have been employed for 12 months and must have worked 1,250 hours in the past 12 months. FMLA leave can be used intermittently or continously.

     As the employer, you should have notified the employee in writing of her rights under FMLA within 5 days after she missed work for a reason that could have been FMLA. By doing so, you would have protected yourself from the employee taking excessive amounts of time off, as well as protected the employee’s job. Since you did not, you should provide the employee with FMLA notification papers now.

     The employee does not have the option of dictating that she will not use FMLA when she misses work for doctor’s appointments. Or rather, she can choose to not use intermittent FMLA for doctor’s appointments, but you can also choose to discipline or fire her for excessive absenteeism if she misses too much time. When an employee is not on FMLA and misses too much work time for whatever reason, she can be disciplined or terminated. If you explain to the employee that her option is being on FMLA or being disciplined and eventually terminated, then we are pretty sure she will decide to use FMLA for the doctor’s appointments.

     Under the current FMLA regulations, the employee also has to follow your usual reporting procedures when she has an FMLA absence. If you normally require employees to call 2 hours before the shift, she needs to call 2 hours before the shift.

     FMLA does not excuse poor performance — it simply allows the employee to take time off work without penalty. The employee is expected to still meet your performance standards for every hour that she is at work. If she does not, you should provide appropriate consequences, just as you would for any other employee.

     It is usually not wise to discipline an employee for “attitude.” Attitude is subjective and internal — you cannot really know how she feels inside. Instead, you can discipline this employee for performance, or for objective, observable behaviors. For example, many employers have a policy that employees should remain upbeat and not complain constantly. You can discipline this employee for griping or complaining — but not for her thoughts or attitude.

     This is a complicated topic, so feel free to post any additional questions if you have them. HTH, and thanks for reading the blogs!~ Amelia

180. Posted by: Kristin

     Frist of all, I work in California. My company offers us 5 sick days per yer. Our policy states that we may use our sick time for illness and appointments provided we a) give notice of appointments as soon as they are made and b) call in sick within the 1st 30 minutes of our shift.
     I typically do not call in sick very often, but this year I have taken 4 of my 5 days due to illness of either myself or my daughter. 2 of these days have been on a Monday. I was written up last week for abuse of the sick policy. In the write up, my boss stated that it is “out of character” for me to call in sick, that I have “used more sick time than other employees”, and it is “hard to believe” that I was sick on 2 different Mondays. Now, I submitted a rebuttal as I do not believe I have abused the policy. I have not exceeded the sick time, I have abided by the call in rules, and I HAVE NOT used more sick time than the other employees. One just came back from 2 weeks of sick leave, has exceeded her sick time, and continues to take time off for appointments and never has to produce a note because our boss believes her. Was my write up legal? Are there any laws to protect me from being harrassed.

181. Posted by: Amelia

     Hi Kristin! California has by far the strictest employment laws in the land. Your employers action may very well be illegal discrimination if an employee of a different race, color, religion, national origin, sex, etc. is taking more time off than you are, in similar circumstances, and not being disciplined.

     We agree that you are basically being penalized for having good attendance in the past, which is not fair. However, it looks like the employer simply wants to nip any frivolous absences in the bud. Our recommendation is that you make sure you are not exceeding the allowed 5 days per year, and that you go to work if you possibly can, and just put this behind you.

     California has several different family leave laws. If your coworker or one of her family members has a serious health condition, the employer may be obligated to give her up to 12 weeks of unpaid, job-protected leave. In many cases this leave can be used intermittently. The employer has the right to require certification of the condition, and you would not necessarily be privy to all the details. However, that very generous leave policy does not extend to minor illnesses like a cold, the flu, etc.

     It may be that the employer is taking this action because he doesn’t want everyone in the office to get the idea they can take as much time off as they like, even if he has one employee entitled to medical leave. He may also be concerned because you have used 80% of your sick time, in less than half the year.

     While it is still fresh in your mind, document the circumstances that you feel are unfair on your copy of the write-up. (For example, Linda Sue took 2 weeks off and I only had 4 sick days, etc.) If the employer at some point tried to terminate you for absenteeism, you would have this evidence. However, we doubt that will happen. The employer just wanted to be sure you were not going to use more than 5 days of sick leave this year. It is not worth fighting about at this point.

     For future reference, it is usually not a great idea to submit a rebuttal to a write-up. Unless this is the formal procedure at your place of employment, you can simply write on the written warning “I disagree with the terms of this reprimand” and sign your name. HTH, and thanks for reading the blogs!~ Amelia

182. Posted by: Jennifer

     Hi Amelia

     Thanks for your help!

     I have a couple more questions, Can we count the days that she has already taken even if she used vacation or personal time? Can we do this retroactively or just going forward after we receive the FMLA paperwork?

     Also, summer is a slow season for our company. We have already laid off several employees and are anticipating laying off more employees this week or next week. Can this employee be laid off? She has not turned in FMLA paperwork.

     Thanks for all your help!

183. Posted by: Kristin

     Hi Amelia,
     I have one more question. In regards to the other employee, she and i are close, so I know she did not use FMLA. However, she was out due to a gastric bypass. She used 2 sick days prior to her surgery for appointments and 2 for illness of children. She was then out two weeks for the surgery, and now needs 3 more days for follow up appointments. She does not have to give advanced notice of appointments as stated in our policies, but I do.

     My question is this: what are the laws regarding confidentiality of health conditions? Our boss willfully discloses to to anyone whoasks about my coworkers weight loss that she had surgery. She has informed the office we should do this so our clients won’t think she is on drugs or has cancer. This seems awfully odd to me. Is it legal for the boss/employees to disclose that my coworker had surgery?

184. Posted by: Amelia

     Hi Jennifer! You are very welcome.

     Under the current FMLA regulations, absences can retroactively be counted as FMLA only when that causes no harm to the employee. In practice, this means that if the employee was physically unable to come to work, you can count that day as FMLA. If she missed work due to a scheduled doctor’s appointment, you cannot retroactively count that day as FMLA, because the employee will argue that if she had known it was going to be FMLA, she would have rescheduled the appointment. Use of vacation pay or sick leave is irrelevant.

     Once you receive the FMLA paperwork, you will issue a designation form to the employee that indicates she is eligible for FMLA, and lists any previous days you are counting as FMLA. See the link below- the bottom of the page has the FMLA papers that the U.S. Department of Labor suggests you use.

     You can lay off this employee, but only if you would have laid her off anyway, even if she did not have the health problem and was not planning to use FMLA. (For example, if you laid off all the drill press operators, and she was a drill press operator, you could lay her off.) It is illegal to retaliate against an employee for using FMLA, or for planning to use FMLA. You also cannot legally count the days she missed work as absences for disciplinary reasons, if she completes the FMLA papers within 15 days and returns them. This issue is even more complex because you did not notify her of her FMLA rights within 5 business days of the first absence, as you were required to do by law. So if you decide to lay off this employee, you need objective grounds unrelated to attendance or FMLA, like seniority.

     Also be aware that Crohn’s Disease may be a disability under the ADA, so you could be committing illegal discrimination based on disability if you terminate this employee due to her condition. Again, this is a complex issue so feel free to ask more questions. HTH, and thanks for reading the blogs!~Amelia

     See the FMLA designation forms at: http://www.dol.gov/whd/fmla/

185. Posted by: Amelia

     Hi Kristin! We see nothing irregular here. Even though you are close to this employee, you have no way of knowing how the employer is tabulating her time off. Again, under California and federal law the employer would be required to give her time off for a serious health condition that requires surgery (gastric bypass) including pre-surgery appointments and follow-up care. The employer may require the worker to submit FMLA certification papers, but there is no law that the employer must require certification. However, under both California and federal law, the employer cannot discipline this worker for taking time off for her serious health condition. Those absences just do not count, from a legal perspective. She has the same right to time off for gastic bypass surgery as she would if she had a stroke or heart attack.

     From what you have said, your coworker has had only 2 absences this year for disciplinary purposes — the two days that she took off when her daughter was sick.

     Federal laws (ADA and HIPAA) prohibit the employer from disclosing an employee’s private medical information without the employee’s consent, under certain circumstances. That is irrelevent here, because the employee has apparently given her permission for the boss to reveal her medical condition to the whole world. The employee was not under an obligation to do this. In fact, an employee can take FMLA without disclosing the diagnosis to the employer (as long as their doctor will certify that it is a serious health condition.)

     If the employer or supervisor was disclosing private medical information obtained during the FMLA or ADA process, or during a discussion of benefits (HIPAA) without the employee’s permission, that might be illegal. However, the employer has the right to casually gossip about any medical information that the employee freely reveals during casual conversation.

     We agree with you that it is unprofessional to be discussing the coworker’s gastric bypass with customers. It is really none of their business. However, this conversation is legal as long as the employee agrees. HTH, and thanks for reading the blogs!~ Amelia

186. Posted by: Jennifer

     Hi Amelia,

     My employer announced yesterday (I am in Texas) that effective immediately they were reducing salaries of most of the exempt employees. These cuts range from 10% to 35% and as you can imagine are pretty awful for some. My question is, was the employer required to give us notice? If your salary is cut so much can you apply for unemployment benefits given the difference.

     Thanks.

187. Posted by: Amelia

     Hi Jennifer! The employer is required to tell you at least one day in advance that salaries will be reduced. In other words, the notification cannot be retroactive. If your employer told you yesterday that beginning today, your salary will be reduced 25%, that is legal. If he told you yesterday that you have been earning the lower salary for the past week, that would be illegal. (A few states require more notification. Texas does not.) The best practice is to let employees know one full pay period in advance, but there is no law that requires this.

     You are by no means alone. The average exempt employee has had a salary reduction of 25% since 2008 — and that is only the ones who are still employed.

     Unfortunately, because you are still employed full-time, you will not qualify for unemployment benefits. Those benefits are designed to help people who have no job, or who lose income due to a drastic cut in hours (like from 40 hours per week to 20 hours per week.)

     In some cases if an employee’s salary is reduced significantly (say, by 50%) and the employee decides not to accept the reduction, the employee can quit and collect unemployment. However, if the employee works even part of one day at the new rate, the employee has accepted the new salary. If the employee quits after that, he or she does not qualify for unemployment benefits. In this economy, you are much better off continuing to work while you look for a higher-paying job. HTH, and thanks for reading the blogs!~ Amelia

188. Posted by: Mitch

     I am considered an exempt employee working for local government. However, if I work less than 40 hours per week, I am either docked pay for my hourly rate, or I must use vaction time to make up the difference. This seems contrary to an exempt employee status, wherein you get paid a salary for doing a job not showing your face for 40 hours a week. I certainly get no additional pay for working over 40 hours, but must be docked or use vaction time if under 40 hours. It seems that I am being classified as both exempt and non-exempt to the benefit of my employer. Do you have any thoughts on this.

189. Posted by: Amelia

     Hi Mitch! This may be legal. Here’s the problem: The law covering exempt and nonexempt employees is the federal FLSA or Fair Labor Standards Act. However, that portion of the FLSA does not cover employees of most state and local governments. You can certainly call the U.S. Department of Labor or contact them at http://www.dol.gov to see if the FLSA applies to you, but our best guess is that it does not.

     Even if the FLSA did apply to you, it would be legal for the employer to require you to use vacation time when you work less than 40 hours per week. In most cases, unless you miss a full day of work, the employer could not dock your pay under FLSA — although they could fire you. But again, that portion of the law usually does not apply to employees of the state or local governments. HTH, and thanks for reading the blogs!~ Amelia

190. Posted by: Kristin

     Hello again Amelia,

     First I would like to say thank you for all of your help. I have one more question for you. There was an employee in our office who closed our office and left it unattended to go to the doctor. She came to work that morning, but had some type of emptional breakdown in front of some of our clients. She thought it would be best if she left. The rest of the staff was out for various work related meetings. Anyhow, she left a message on the voicemail for our boss, she called all of the staff who were out, and left a written note in the office saying where she was going. She locked the door and left. Upon our return to the office around 11am, our boss had a locksmith there changing the locks and informed me that the employee who left was going to be fired, and offered me her job, which i refused.
     Needless to say, she was fired later that day over the phone for disobeying company policy and leaving the office. The employee was even able to produce a doctor note.
     This seems odd to me. Was this termination legal? Oh our written policies say nothing about leaving the office at all. And our unwritten policies have allowed for other employees to close the office for various reasons such as being there alone. Sorry for the long email and thank you in advance

191. Posted by: Amelia

     Hi Kristin! No, this is probably not legal in California. First of all, if the employer has 50 or more workers within 75 miles, the employee is probably entitled to FMLA for this absence. Even if the employer is smaller, she is probably covered under one of the other family leave laws in California.

     The employee made every attempt to contact someone to let them know that she was ill and would have to leave the office, so we find it hard to fault her. Many employers do not realize it, but they are legally obligated to treat mental illness the same as a physical illness, under the law.

     Depending upon the worker’s condition, this may be illegal discrimination against an employee with a disability under ADA or a similar California law. Or, it could be illegal discrimination based on a perceived disability, especially since the boss has permitted other employees to lock the office before.

     California provides much more protection to employees than other states. Generally speaking, an employee cannot be fired without warning in California. In this case, the employee is certainly entitled to unemployment and may very well be entitled to be reinstated to her job. Our advice is that this worker contact the Division of Labor Standards Enforcement and speak to them about wrongful termination and illegal discrimination. HTH, and thanks for reading the blogs!~ Amelia

192. Posted by: Kathy

     Amelia,

     I have another I-9 question. We have some employees whose work authorization cards have expired. Many of those employee have qualified for an extension. Employees have brought in a Federal Register Notice which explains a little more about the extensions. But are we allow to require the employees to bring in proof that they have filed for the extension if their expired cards? I ask this because many of them have also brought in a confirmation letter of receipt of their application or a letter from their attorney which states that they have filed for the application. Are we allowed to require all employee to present one of these two items as proof that they have filed for the application?

193. Posted by: Amelia

     Hi Kathy! Sorry, but no. You cannot legally request any information for the I-9 other than the documents listed on the form.

     We are a little concerned that you may not be getting accurate information from your emloyees. The USICS has issued several automatic extensions for EADs for employees from specific countries over the last few years, such as Honduras and El Salvador. The Federal Register contains information on identifying which specific EADs are covered — not all of them are. In particular, there is currently an extension in place for EADs for citizens of El Salvador. All of the affected EADs are stamped A-12 or C-19 in the category box on the front and expiration dates through March 9, 2009. To be on the safe side, you should go on the Federal Register site and read the information for yourself. (Unfortunately, employees have sometimes been known to alter information before printing it and bringing it to work. You should always check the original source.)

     These extensions are automatic and no attorney or application is required for them. (Anyway, a letter from an “attorney” or a “receipt” for an extension application is not an official document. It can easily be generated by anyone with a computer.) Once the revised EAD date has passed, the employee is no longer authorized to work in the U.S. Even if the employee has applied for an extension, that does not mean it will be granted and it does not make it legal for the employee to continue to work in the U.S. until the extension is granted. Allowing an employee to work without documentation is intentionally breaking the law, if the new expiration date has passed.

     Just as a general rule of thumb, an employee who wants to provide you with a document other than those specified on the I-9 is almost always an undocumented worker. If they could legally work in the U.S., they would supply the required documents to prove it.

     If the employee has one of the very few EADs that have been extended, the expiration date on that document has simply changed, and you are not allowed to ask for any further documentation until the new expiratin date. Nor are you allowed to ask for proof that the employee is a citizen of the affected country (like El Salvador). For your own protection, print a copy of the relevant pages from the Federal Register and attach to the I-9. Once the new expiration date passes, no reciept or letter is a sufficient replacement. A new EAD with a new expiration date will be issued.

     If you have more info on the particular type of extension that is relevant to your employees, we can research it so you will be able to identify which EADs it applies to. HTH, and thanks for reading the blogs!~ Amelia

     See the I-9 including list of documents here: http://www.uscis.gov/files/form/i-9.pdf

     Read more about EAD extensions here: http://www.justice.gov/crt/osc/htm/work_extension.html

194. Posted by: Jennifer

     I work for a furniture manufacturing company in Kentucky. Summer is typically a slow time for us and generally we lay employees off. Some of our over the road drivers are taking a voluntary one week lay off. Do these drivers need to be terminated in our system for the week that they are laid off or is it sufficient to fill out a time off request stating that they are taking unpaid time off? Thanks for your help!

195. Posted by: Amelia

     Hi Jennifer! It’s fine to leave the drivers in the payroll system while they are taking an unpaid week off. There are a number of legitimate reasons why an employee would still be employed, but have no hours worked for one or more payroll weeks, and this is one of them.

     It would make no sense to terminate these employees in payroll and then reinstate them the next week. In addition, it does not reflect the reality that the drivers are still employees, they are merely not working this week. HTH, and thanks for reading the blogs!~ Amelia

196. Posted by: Kate

     I’m an exempt, salaried employee in Illinois, and our office closes during holidays. I’m required to use PTO for those days. However, if I don’t have enough PTO accrued, they dock my pay, even though I would have been willing and able to work those days. Also, if I leave an hour early for a dentist appointment, etc., they also take PTO time, and again, if I don’t have PTO accrued, they dock my pay. I don’t see how this is legal. I’ve lost several thousand dollars working here because of that, even though I’ve often put in 60 – 80 hour work weeks during peak seasons. This has happened to numerous people in my department.

     Is this legal in Illinois?

197. Posted by: Amelia

     Hi Kate! There are two possibilities here. One is that you are actually a salaried non-exempt employee. A salaried employee can be either exempt or non-exempt. In this case, it sounds like you are being treated as a non-exempt employee, which would make you eligible for overtime when you work more than 40 hours in the payroll week.

     The other possibility is that you are genuinely a salaried exempt employee, and the employer is violating the federal FLSA and possibly Illinois wage law as well.

     If you are an exempt employee, the employer can require that you use PTO to cover holidays when the office is closed. They can even require that exempt employees reserve PTO specifically for that purpose, and many employers do so. However, if you are ready, willing and able to work on the holiday, and no work is available, you must be paid your usual salary for the week. This is true, even if you have no PTO available.

     Under the FLSA, an exempt employee who works any portion of the day is entitled to payment for the entire day. PTO time can be used, but even if the employee has no PTO time available, the employee must be paid his or her full days salary. (The exception is if the exempt employee is using FMLA or taking leave under ADA.) The employee can be disciplined or terminated for taking too much time off, but must be paid his or her usual salary for the week.

     You are being treated as a non-exempt employee. When an employer treats an exempt employee as non-exempt, the employee’s status is permanently changed to non-exempt. Therefore, you are entitled to overtime for any payroll week in which you worked more than 40 hours.

     You should tactfully raise the issue of overtime with HR or your supervisor. If you are not paid, you should file a wage complaint with the Illinois Department of Labor or IDOL at http://www.state.il.us/agency/idol/forms/pdfs/IL452MWL01.PDF . They will investigate the company records to determine if you are being paid correctly. If not, they will force the employer to pay back wages for a maximum of 2 to 3 years. It is illegal for an employer to retaliate against an employee who files a complaint in good faith. HTH, and thanks for reading the blogs!~ Amelia

198. Posted by: Lisa

     Our employer cut our wages 10% across the board for the second time. Is it legal for the employer to pass out pay checks with wages for the previous 2 weeks worked and then tell us that they cut our pay?

199. Posted by: Amelia

     Hi Lisa! No, a retroactive pay cut is not legal. An employer can cut any employee’s wages, but the employee has to be informed before he or she performs the work. You should file a wage complaint with your state department of labor, or the federal department of labor. HTH, and thanks for reading the blogs!~ Amelia

200. Posted by: Kathy

     Amelia,

     In Kentucky what are the legal issues involved if we change pay dates from weekly to every two weeks? What would be the proper way to do this? Also, in Kentucky is the employer obligated to pay out jury duty to employees?

     Thanks!

201. Posted by: Amelia

     Hi Kathy! It’s great to hear from you again! A Kentucky employer can change the pay day from weekly to every other week, with proper notice to employees. (If the employer was continually switching the payday back and forth, that would be illegal.) The best practice would be to inform employees in writing 2 to 4 weeks ahead of time about the change. Example: Beginning October 1, paychecks will be issued every other week on Tuesday. Employees will receive a payroll check for one week on September 28. The next paycheck will cover two weeks, and be issued on October 12. (This allows the employees to plan their personal finances accordingly.)

     There is no law in Kentucky that requires the employer to pay workers for jury duty. An exempt employee who works part of the day (and serves on a jury part of the day) must be paid for the entire day. HTH, and thanks for reading the blogs!~ Amelia

202. Posted by: mariela d lee

     HI Amelia,

     We have a problem with my fiance’s “ex” company. He was hired at an hourly rate of $17/hr .working as IT support he was sent to 2 locations on daily basis..after a while..his company decided to pay him per computer worked on ranging from $30-$50 per computer depending on the type pf computer that needed to be worked on…once this change occured (which happened 7 months after he got hired) he was now being sent to 5 locations instead of 2 that he started with..some locations were in San Diego, Lancaster, Brea basically ranging from 5 miles to almost 200 miles away..on these trips he would be given 1 computer -30 computers to work on on a given day..It was never explained to him that his gas would be reimbursed..we assumed it would be reimbursed because that is the law in CA…the company is based out of Florida and has no specific place where he has to report to..every day he goes to random locations for work to do..being paid $30 for 1 computer to drive to san diego became a big inconvenience and for the pay he was getting..it got to the point where he could not afford the gas any more..if there was a problem with 1 computer that was repaired in 1 given location..he would be required to go back and fix the 1 computer and not get paid for it..please advise if the following is legal;

     #1 he was never reimbursed for gas for all his travel
     #2 he was never reimbursed for his meals while on a long trip for work done in a faraway locatoin
     #3 can the company fire him if he refuses to go to work to a location that is 200 miles away for 1 computer to work on

     The company sent him on a trip to san diego to fix 1 computer that he would get paid $30 to repair..it took him almost 3 hrs to repair it and he came back home..that same night he got an email to go back to that location to fix yet another computer at the same location for $30 and from there would be sent to another location that was 50 miles from that location for another $30 computer for repair..he went to the san diego location but was unable to finish the job as it became very late..the job that would have taken 3 hrs to finish took 9 hours..he called his boss and told him he needed to come home..his boss yelled at him and after that night..did not call him for work for almost 3 weeks..we called the company to find out why they would not call him for work and they explained that they found someone else to do the work because he refused to work..we proceeded to call the EDD and file a EDD form..the employer is currently appealing the EDD’s decisiion that allowed him to collect EDD benefits saying that they offered him work and he refused to work…is this legal? what can we do?

203. Posted by: Amelia

     Hi mariela! Your fiance should contact the DLSE, the Division of Labor Standards Enforcement and file a wage complaint for a) wages and b) reimbursement for gas and meals. It sounds like your fiance was averaging less than the state minimum wage for the hours worked. They can straighten this out for you. An employee who quits because the employer was breaking the law can collect unemployment benefits. HTH, and thanks for reading the blogs!~ Amelia

204. Posted by: Kathy

     Amelia,

     Question: Our company volume and sales have significantly decreased in the last year, are we legally obligated to provide all employees with health benefits? We currently have 312 employees (56 office and truck drivers, 256 production workers) and have been considering the idea of eliminating medical health benefits for production employees. When our company first started in 1992, benefits were only offered to office staff, maintenance staff and truck drivers. As our company grew, in 1998 we offered all benefits to all employees and it has been this way every since. With the economy and all the healthcare reform changes, our company is struggling against reorganization at this time and must do drastic cutbacks to survive. This elimination would save our company about 100K per month. Attorneys and banks are urging us to eliminate coverage or pull plug. Please advise is this considered discrimination if we uninsured production and leave administrative staff as we originally started?

     Thanks
     Kathy

205. Posted by: Amelia

     Hi Kathy! Yes, this could be illegal discrimination unless the two groups are very similar. Suppose the production staff is mostly male, while most of your female employees work in the office. This would be illegal discrimination based on sex, because you are offering better benefits to female workers. By the same token suppose most of your Hispanic workers are production employees, while very few Hispanic workers are in the group that would be covered by insurance. This would be illegal discrimination based on national ancestry.

     The important concept is de facto discrimination. This regulation says that an action is illegal discrimination if it has an unequal effect on a protected group, even if there was no intention to discriminate. If 60 percent (or more) of your Hispanic or African American or male or female employees are going to lose health insurance coverage due to this measure, it is discrimination.

     The only way this will not be discrimination is if the group of office workers and drivers exactly mirrors the composition of the production workers in terms of race, sex, ethnicity, color, religion, age, disability, etc.

     It also opens the company up to allegations of elitism, since it presents the appearance that office workers (managers) are trying to figure out a way to cut everyone else’s healthcare, but keep their own. This is the type of situation that often results in union action.

     A better alternative might be for the company to stop making any contribution to the employee’s health insurance, or to drastically reduce the company’s contribution. This will reduce the company’s expense, while still allowing employees to obtain health insurance at a higher cost. The net result may be the same — most production employees may opt out of the more expensive health insurance program. However, it will be their choice, not yours.
     The other option, of course, would be to eliminate health insurance altogether, although we hate to see you go that route. HTH, and thanks for reading the blogs!~ Amelia

206. Posted by: Kathy

     Amelia,

     In our company many positions/departments have been reviewed to order to consolidate as much as possible and reduce unnecessary expenses. After this review, we have a production employee whose job responsibilities (maintaining and repairing tools) fall more under the responsibilities of the maintenance department. This employee is to be transferred within the next couple weeks into the maintenance department. The problem is that our company has eliminated the medical insurance benefit from all of our production employees as of 09/30/10. With this employee being transfer from production into maintenance he will still be able to keep this benefit. What are your suggestions on how to handle this situation? This transfer is based solely on the employee’s job responsibilities but I am not sure on how to handle it.

207. Posted by: Amelia

     Hi Kathy! If we understand correctly, you are transferring this employee from production to maintenance based strictly upon his job duties. However, this change presents the appearance of favoritism or illegal discrimination because it will result in this employee being the only production worker who retains his health care benefits.

     An ideal solution would have been for the transfer and the elimination of healthcare for production employees to not occur at the same time. One option would be to not implement this transfer for several months, so that the two events occur at different times. The production worker would lose his healthcare coverage, but be eligible for it again after he was transferred in 3 to 6 months. However, we will assume that both decisions have been made and cannot be delayed.

     From an operational point of view, as long as the employee is transferred before 9/30/10 he will retain his health insurance. If he were transferred after that date, he would be treated as a newly hired or promoted maintenance employee.

     The best you can do in this situation is to maintain a clear paper trail documenting the valid business reasons behind transferring this production employee to maintainance. Also retain the documents showing that you did an extensive, company-wide reassessment of all positions at the same time. That way, if you are sued for illegal discrimination (based on the fact that this worker retained health insurance while others did not) you will have evidence to justify the decision and — hopefully — win the case.

     Wish we could guarantee that you will not be sued for discrimination in this situation, but we cannot. Try to keep the two issues entirely separate as far as possible. However, you have a better than 50% chance of winning, if you are sued. HTH and as always, thanks for reading the blogs!~ Amelia

208. Posted by: ashley

     I want to know if my employers (in Kentucky) can make a change to my pay stub without notifying me first?

209. Posted by: Amelia

     Hi ashley! That’s okay, we understood! That depends upon what type of change. The paystub is simply a record of what was on the paycheck, and why. Under some circumstances, the employer might have to make a change, such as deducting more taxes or FICA when the employee gets a raise. In other cases, the employer might list an incorrect amount of vacation or sick leave on the paystub, and has the right to correct it in the future.
     In a way, the employer IS notifying you of these changes, by giving you a current paystub. Feel free to post another question with more details, if that doesn’t address your problem. HTH, and thanks for reading the blogs!~ Amelia

210. Posted by: Jennifer

     Hi Amelia. I work for a furniture manufacturing company in Kentucky. April through October is typically our slow season. We have been forced to do major cut backs within our company, everything from working reduced hours to lay offs. If we were to do a shut down for one to two weeks would we need to give employees advanced notice? If so, how much notice should we give?
     Thanks!

211. Posted by: Amelia

     Hi Jennifer!
     Assuming that you are not going out of business, but simply closing the plant for a week or so, you could inform the employees today that the plant will be closed for a week beginning tomorrow.
     If you will be furloughing exempt employees, the closure needs to be for a payroll week. An exempt employee who does no work at all for an entire payroll week because the business is closed need not be paid. However, if the exempt employee works one day or even a few minutes durng that payroll week, he or she is entitled to the usual salary for the week.

     If you are terminating a group of employees or closing the plant permanently, many times you have to give 60 days notice under federal and state WARN laws. However, those laws do not apply to simply scheduling employees for fewer hours for a week, or a few weeks. HTH, and thanks for reading the blogs!~ Amelia

212. Posted by: Jennifer

     Hi Amelia,

     In Kentucky is an employer obligated to pay out vacation time on an employee that is being terminated due to conduct?

213. Posted by: Kristi

     I am a salaried exempt employee. I have requested a day off for vacation. I am required to fill out a form stating the day and amount of hours I took off and whether I want the day paid or unpaid. I marked unpaid and submittedd the form with payroll. When I received my check I was paid for the day and my available vacation hours were reduced. The last time I submitted this form and had also marked unpaid, my check reflected a reduction of 8 hrs of work and my vacation hours were not reduced. This has also been happening with our hourly full time staff. They are being paid there vacation hours when they have not requested to use them. For example during the school year one of the full time hourly employees works 8 hours a day. Over the summer she worked 6 hours per day and was paid 2 additional hrs. Per day out of her vacation pay. She now wants to use her vacation pay,that she had been saving it for, but found out she doesn’t have it because it had been used without her knowing.
     Are these situations o.k. for the employer to pay the employee vacation hours for?

214. Posted by: Amelia

     Hi Kristi! Yes, these are all okay uses of vacation time, and these are very common policies in business. There is no law that an employer must permit employees to take as much time off unpaid as the employee likes, and many employers would have a problem with employees using unpaid days. This is one of the primary purposes behind paid vacation time — it limits the number of days off that an employee can take.

     For an exempt employee, it can be problematic for the worker to take an unnpaid day off. Most companies would dock the employee’s vacation time and pay the employee instead. There is no law that guarantees the employee the right to take unpaid time off, in most cases. (The exceptions would be time off under FMLA or ADA, or a state family leave law.)

     For the hourly employee who worked 6 hours per day but was paid for 8 hours per day, obviously she knew that she was being paid for extra time. It is entirely reasonable for this to come out of her vacation pay. HTH, and thanks for reading the blogs!~Amelia

215. Posted by: Amelia

     Hi again Jennifer! This is a matter of company policy rather than employment law in Kentucky. If you have a written policy that states you will pay workers for unused vacation at termination, and you fail to do so, the employee may be able to collect in court. If you have a past practice of paying unused vacation at termination and you do not do so now, that could be illegal discrimination.

     However, many employers have the policy that an employee who is fired for gross misconduct is not eligible for vacation pay at termination. If you enforce this policy consistently, that is legal in Kentucky. HTH, and thanks for reading the blogs!~ Amelia

216. Posted by: Kimberly

     In July we were told our salaries were reduced; 4 of us who were not part of a “leadership team” were reduced by 8%, leadership team reduced by 10% we were told that this was due to cash liabilities with our defined benefit plan and training expenses. We were told that the salary reduction was a 6 month attempt to do this and would be reviewed in 3 months. About 3 weeks ago I found out one of the employees who was reduced by the 8% got reinstated back to their original salary. Only this individual no one else. We were also told that if we were to get a letter from the trainers for the excusing the training expense than he would modify the reductions based on that letter. I have this all in writing and do not think it is fair/legal. Please define this for me.

217. Posted by: Amelia

     Hi Kimberly! This is probably legal. The employer can reduce any employee’s salary at any time, without a reason. The employer can also choose to increase one employee’s salary without increasing anyone else’s. If that decision was made based on race, color, sex, religion, disability, etc. it would be illegal. But if it is based on another reason it is legal.
     In this case, the employer is willing to reward employees who have better skills with a higher salary. There is nothing wrong with that. The employer does not have to treat every employee the same, as long as decisions are not illegal discrimination. HTH, and thanks for reading the blogs!~ Amelia

218. Posted by: Kimberly

     Thank Amelia; the reason I was told it was increased back is for government bureaucracy due to application for work visa as they are not a us citizen. Is this still legal? Isn’t this discrimination.

219. Posted by: Amelia

     Hi Kimberly! Yes, it may be illegal discrimination based on national origin, if an employee with the same skills is being paid more than other employees. You could file a discrimination complaint with the EEOC or a state department of civil rights. HTH, and thanks for reading the blogs!~Amelia

220. Posted by: Maria

     Hi Amelia!
     In California my current position is FT Sale Leader basically right under Active Store Manager , with my store manager gone for emergency maternal leave as well as an extended 4 months due to complications of health, i was told that i should have received a temporary pay increase for time being. Is this true or does this only apply to certain Companies? Hope u can answer Thanks!

221. Posted by: Amelia

     Hi Maria! There is no California or federal law that requires an employer to give a salary increase to an employee whose responsibilities increase. Many companies would consider filling in for the store manager part of your job description as sales leader, anyway. Usually those same companies would consider a future promotion for an employee who took on extra responsibilities, but it would be very unusual to give a temporary salary increase and then return you to your lower salary in the future. HTH, and thanks for reading the blogs!~ Amelia

222. Posted by: Kathy

     Amelia,

     Hello again, another question. Like I said before we are a manufacturing company in KY but also have transportation division that ships our products to customers. We currently have a salaried truck driver who is going to be laid off in the next couple of weeks due to reduced business levels. This driver lives in the state of Washington and in the past was flown to KY and allowed to live out of his truck while working for us. My concerns:
     Are we legally obligated to pay his way back home? Are we legally responsible to ship his personal belongings to him? This is something that he is accustomed to since it has been done in the past and may expect it. Please excuse the question if it sounds stupid. Common sense says no….

     Thanks!
     Kathy

223. Posted by: Amelia

     Hi Kathy! Actually, this is not a dumb question at all, and we all know that sometimes common sense does not apply to employment law.

     This is a gray area. In some cases, when an employee is sent on a temporary assignment out of state, the employer is responsible for getting him home. Example: Suppose you sent a supervisor to Florida for a two-week training class. Midway through the class, you discovered that the supervisor had been stealing petty cash, so you terminated him. You would still be responsible for providing transportation home for the ex-employee to return to Kentucky from Florida.

     Ideally the transportation arrangements would have been spelled out in the offer letter or contract that this employee signed at hiring. If not, since the employee has been flown home before, the company has established a precedent here. We would suggest a compromise: provide the employee with a one-way ticket home, but only if he signs a statement that he understands this policy has changed and in the future he will be required to provide his own transportation between Kentucky and his home for work assignments, furloughs or at termination. Then when he is recalled from this furlough, he can provide his own transportation from Washington to Kentucky. (He can do this by the method of his choice: plane, bus, car or rental car, as long as he arrives in time for the first day of work.)

     We see no need for you to ship this employee’s belongings. He can take them as checked baggage and pay the baggage fees, or he can ship them via UPS or a similar company. Make it clear to the employee that from now on he is responsible for paying all transportation costs on his own.

     If you inherited this employee through a merger and your company has never paid his transportation costs before, there is no reason for you to start now.

     If there is a benefit to the company of having a driver who lives in Washington instead of Kentucky, you may want to continue the current arrangement and continue paying the transportation costs. But otherwise, you should save the money. HTH, and thanks for reading the blogs!~ Amelia

224. Posted by: Kathy

     Are we legally responsible to pay interns? Usually they work for hours earned in a office environment and we simply complete forms that they have completed internship. But by law do we have to pay them? Just trying to make sure I have the correct information.

225. Posted by: Amelia

     Hi Kathy! Yes, the minimum wage and overtime laws apply to interns unless they are enrolled in college or high school classes and receiving course credit for their internship, along with a grade under a formal partnership with a recognized, accredited educational program. Usually this occurs only if you are participating in a work study or internship program with a local high school or college.

     Even then, the best practice would be to pay the interns the minimum wage. Also check with your workers’ comp policy. Often, workers’ comp only covers paid employees and by law you are liable if an intern is hurt, so you need for them to be covered. HTH, and thanks for reading the blogs!~Amelia

226. Posted by: Lori

     My employer just told me that they have to cut my salary by 50%? Do they have to give me any notice or can this take effect the minute they tell me verbally? I work in Florida in case that make a difference.

227. Posted by: Amelia

     Hi Lori! Wage cuts cannot be retroactive. If the employer told you at the beginning of work today that your salary will be cut by 50% beginning today, that is legal. The best practice would be to let the employee know at least one pay period in advance, but there is no law that requires this.

     However, if they told you at the end of work today that beginning this morning, your salary was cut, that would be illegal. It would also be illegal for the employer to tell you that starting last week, your salary was reduced by 50%.

     Usually an employee who quits rather than accept a significant wage reduction qualifies for unemployment benefits. However, if the employee works even on day at the new salary, and then quits, he or she does not qualify for unemployment benefits. However, in this economy you are probably better off staying with your current job (even at the reduced salary) while you look for something better. HTH, and thanks for reading the blogs!~ Amelia

228. Posted by: Jennifer

     Hi Amelia,
     I work for a furniture manufacturing company in Kentucky. Summer is typically our slow season and sales usually pick up around this time of year. Due to the bad economy and several other contributing factors my company has been forced to make several cut backs and eliminations including layoffs. Can we legally withhold employees paycheck for two weeks if the employee volunteers to do so in writing? After two weeks the company has full intentions of repaying the employee. Would this be legal? The company needs to accumulate cash and we are searching our options. Do you have any suggestions on what we should and can legally do?

229. Posted by: Amelia

     Hi Jennifer! No, this would be a violation of the Kentucky Wage Payment law. That law requires an employer to pay workers on time, and sets limits on how soon the employee must be paid, after the work is performed.

     In addition, this would violate the Kentucky and federal minimum wage laws. Because $0 is less than the state and federal minimum wage, when you delay paying an employee you are in violation of the minimum wage laws.

     All three of those laws apply, even if you have the employee’s permission to pay him or her later. In other words, you would be violating the law even if employees agreed to be paid less than the minimum wage, or to wait longer for payment. As distasteful as it is, putting employees on furlough or lay off for a week or two is a far better way to save payroll than withholding paychecks. HTH, and thanks for reading the blogs!~ Amelia

     Read more about this at: http://www.labor.ky.gov/ows/employmentstandards/wagehourregulations/

230. Posted by: Jennifer

     Hi Amelia,

     I work for a furniture manufacturing plant in KY. For the last 3 weeks our production has been shut down due to lack of material, etc. Yesterday there were approximately 13 employees that clocked in and worked 1 hour. Are we legally obligated to pay these employees only for hours worked or is there a minimum amount of hours that has to be paid?
     Thanks!

231. Posted by: Amelia

     Hi Jennifer! In Kentucky you are legally obligated to pay these employees only for the time that they actually worked. A few companies have minimum “reporting pay” requirements, but Kentucky does not. HTH, and thanks for reading the blogs!~ Amelia

232. Posted by: Jennifer

     Hi Amelia,

     I work for a furniture manufacturing company in Kentucky. My company is in the process of filing bankruptcy and restructuring with new ownership. Last Friday we laid off all but about 15 of our employees with no definite recall date. Amongst the negotiation, the banks are not wanting to pay the employees that are here this week. Is this legal? Also, we have two salaried employees that were out of the state working at one of the shows that we attend when the lay offs took place. Both of these employees are salaried employees and they worked all weekend, Monday and Tuesday of this week. Do we legally have to pay these employees for the time that they put in?

233. Posted by: Amelia

     Hi Jennifer! Sadly, this situation is very common with a Chapter 7 bankruptcy, when the company goes out of business entirely. It is less common with a Chapter 11 bankruptcy, when the company is reorganized. Technically yes, state and federal minimum wage laws, including the FLSA, require that the employer pay workers for all time worked, including exempt employees. However, when there is literally no money left to pay anyone, sometimes employees go unpaid. The employees simply become another creditor of the company, and have to be represented in court as one of the creditors. Most judges and every ethical employer will make it a priority to pay the employees first. Many judges will order that the employees be paid in full if funds are available.

     Unfortunately, when the company goes out of business entirely, the employees may never be paid past due wages, or they may only be paid a percentage of wages due. Theoretically the U.S. Department of Labor could sue the company and charge back wages, as well as penalties and interest. However, even the DOL cannot get blood out of a turnip, if there is just no money available.

     If the bank is choosing to pay another creditor instead of meeting payroll, that is illegal and unethical. Unfortunately, it does happen. (A truly ethical company would have laid off all employees and shut the doors before putting themselves in this situation.)

     We usually do not recommend that employees continue to work for a company that is not paying them. As noted, they may never receive the wages owed in a bankruptcy. Depending upon the type of restructuring, the new owners may not be responsible for payment of back wages, and the old owners may simply not have the money. An employee who quits a job due to non-payment qualifies for unemployment and has time to look for paying work. This is usually a better deal than working 40 or more hours per week for free. The old owners may make promises to employees to incent them to stay. Often, the new owners forget those promises. This is a difficult situation, so feel free to post any more questions that you might have. HTH, and thanks for reading the blogs!~Amelia

234. Posted by: Rick

     I am presently at home recuperating from bypass surgery performed at the end of September. I am an engineer (VP Engineering) working at a small manufacturing company in Ohio. I am a salaried professional with 6+ years spent at this company. I have been receiving my weekly salary for the past 5 weeks which have now stopped. The company staff is expecting me to rejoin them after I am properly healed and approved by my cardiologist to resume full time work in early December.

     What are my rights, if any, regarding salary compensation? I have been notified that I have used up the last of my vacation time (Approx 2 weeks).
     Am I considered to be layed off which would allow me to file for Workers’s Compensation? How does FMLA figure into the equation if I rejoin this company?

     I have bills to pay during this next period of time through the upcoming Holidays and into 2011.

     I have been considering filing for Social Security (Will be 65 in March ’11) and retiring in early 2011. Possibly working part time somewhere for the next several years.

235. Posted by: Amelia

     Hi Rick! Our best wishes for a speedy recovery. There is no federal or state law that requires an employer to continue to pay an exempt employee who is physically unable to work. If the employer has allowed you to use your accrued sick leave and vacation time, that is all you are entitled to.

     No, you are not laid off, you are on unpaid medical leave. No, you would not qualify for workers’ compensation if you were laid off. Workers’ comp only covers work-related injuries. If an I-beam fell on you at work and broke your leg, you would qualify for workers’ comp. But someone recovering from coronary bypass surgery does not qualify for workers’ comp.

     Nor do you qualify for unemployment, because you are not physically able to work. If you were permanently disabled, you would qualify for Social Security disability payments, but that does not apply in this case because you are expected to recover.

     Some companies offer short term disability insurance as part of the benefit package. You should inquire whether your company includes such coverage. Unfortunately, if you are not already covered, it will not pay benefits for your current illness.

     Five U.S. states (and virtually all European countries) offer short term disability payments to any employee who cannot work for several weeks. Unfortunately, Ohio does not offer this benefit.

     If the small manufacturing company has fewer than 50 workers within 75 miles of your office, they are not covered under FMLA.

     If they are covered under FMLA, they must offer you up to 12 weeks of unpaid, job-protected leave. (Realistically, if you were covered by FMLA they would have informed you in writing within the first 5 days you were absent, and the 5 weeks you have already been off would have been counted as FMLA.) Under FMLA, the company has to continue to pay their portion of your health insurance premium. If you choose not to return to your old job, you must repay the employer for their portion of the insurance premiums.

     If you are ready to return after 12 weeks of FMLA, they must return you to the same job. However, if you cannot work after 12 weeks, you can be terminated.

     This is a situation that many employees face when they are temporarily unable to work due to illness. There really is no safety net in our society. Employees must depend upon personal savings or other resources. If you have a 401k, you may be able to withdraw some of that money early due to financial hardship, but you will have to pay taxes on it.

     Unfortunately, almost the only financial help available is food stamps. If you are experiencing a financial hardship, you can apply for Temporary Assistance for Needy Families (called different things in different states, but usually informally referred to as welfare.) Or, dial 211 from any landline phone (in most areas) for a list of assistance available for those with low income.

     And feel free to post any additional questions you may have. HTH, and thanks for reading the blogs!~ Amelia

236. Posted by: Jennifer

     Hi Amelia,
     I work for a furniture manufacturing company in Kentucky. OSHA requires that all employees who work around loud machinery have annual hearing tests. We brought a company to our facility last week to perform these tests. There are approximately 6 employees that need to be retested because of possible threshold shifts in their hearing. Is it legal for our company to send these employees to be retested on their day off for a company required test or should these employees be paid for the time that it takes for them to be re-tested?
     Thanks!

237. Posted by: Amelia

     Hi Jennifer! The best practice would be for you to pay these employees to take the tests. You can schedule the tests on their day off, but should pay them for the hours involved. If this results in the employees working more than 40 hours per week, you should pay them overtime.

     It sounds like your past practice is to test employees during working hours and pay them for the tests. If you treat these employees differently, that could be illegal discrimination based on a disability (hearing loss) or a perceived disability (possible hearig loss.) To be on the safe side, you should pay these employees for the tests.

     For next year, you could always contact OSHA at http://www.osha.gov and ask if you must pay employees for testing. HTH, and thanks for reading the blogs!~ Amelia

238. Posted by: Jennifer

     Hi Amelia,

     If an exempt salaried employee has to work on a holiday that is usually a company paid holiday, legally should the employee receive extra compensation for working this holiday?

239. Posted by: Amelia

     Hi again Jennifer! No, the exempt employee should not be paid extra for working on a holiday. In fact, doing so may change this employee from exempt to non-exempt, and make her eligible for overtime for the past 2 years. An exempt employee is entitled to her full salary each week she works — nothing more and nothing less. Her wages cannot vary according to the number of hours worked. It would be thoughtful for the employer to allow the employee to take another day off, but there is no legal requirement to do so. HTH, and thanks for reading the blogs!~ Amelia

240. Posted by: Mariesha

     Hi Amelia!

     I am an ‘exempt’ salary employee from California. I use the quotes around ‘exempt’ because I recently found out the salary wage requirements in my state…and what my employer pays me does not even come close. When bringing this up to my boss, she admitted that she had intended for the other manager and I to be exempt given the massive overtime we put in on a daily basis. Now that she is aware(I don’t know how she wasn’t aware as a business owner, anyway), she will be raising our salary to the state minimum(as well as adding on many more responsibilities/hours…but so goes life).We don’t keep track of our hours, so there’s no way to determine any retroactive overtime pay. How can we be compensated for the hours in which we have already worked? Are they required to give us back pay in order to make up the difference between the salary we were receiving and the salary we should have been receiving?

241. Posted by: Amelia

     Hi Mariesha! We agree that your employer should have known this, although a recent article by SHRM, the Society for Human Resource Management pointed out that thanks to websites like ours, many employees are better informed about employment laws and wage issues than their bosses.

     By law your employer is responsible for paying you overtime for all the extra time you have worked in the past 2-3 years. Under both federal and state law, an employer must accurately track the hours an employee works. It sounds like your employer may not have done so, however, there may be ways of reconstructing those records (like looking at the times you were logged onto a computer.) You could also guess the number of hours that you have worked each week since hiring and require payment for that. Since she cannot prove that you did not work those hours, she would be responsible for payment.

     An alternative might be for your boss to pay you the difference between your salary and the state minimum for an exempt employee as back wages. This would probably not satisfy the California Division of Labor Standards Enforcement, but it could be a reasonable compromise.

     You should tactfully approach your boss and request that she either pay you back wages for all the overtime owed, or pay you a lump sum for the salary underpayment. If you have not been paid within 30 days, file a wage claim for unpaid overtime with the California Division of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/. (Don’t let her string you along, because there is a time limit to file a wage claim.) The DLSE can inspect her business records, figure out how much you are owed and force her to pay. It is illegal for an employer to retaliate against an employee who files a wage claim. HTH, and thanks for reading the blogs!~ Amelia

242. Posted by: Sarah Shane

     Hi,
     My question… I am a Salaried General Manager for a restaurant. My minimum hours to be worked are 45 hours a week.
     I was sick back in september and missed a few days of work with a doctors note, my boss told me that I had to use my vacation time to make up my missed hours or take a pay cut for the pay period.
     Is that something he can do? I mean I am on salary.
     thanks

     Sarah

243. Posted by: Amelia

     Hi Sarah! This is not a salary reduction, it is docking your pay. (A salary reduction would be permanently decreasing the amount you are paid without any change in hours.)

     Under the federal FLSA or Fair Labor Standards Act, an exempt employee usually must be paid her full weekly salary, every week. An exempt employee who works any part of the day, even 5 minutes, even from home, must be paid her full day’s salary. However, the employer can count that day as vacation time. The law addresses the amount on the employee’s check, not whether it is tabulated as sick leave, vacation time or regular salary.

     The rules are slightly different if the employee does no work at all for a day. If an employer offers a bona fide paid sick leave program, and the exempt employee exhausts all available paid sick leave, the exempt employee need not be paid when he or she misses a full work day due to illness. Ironically, if an employer has no bona fide paid sick leave program, exempt employees must always be paid their usual salary for sick days. However, again, the employer can count that time as vacation if they like.

     So yes, the employer can count your sick day as a day of vacation. If you were out of vacation time, he would be able to dock your salary for the days you missed — but only if he offers a bona fide paid sick leave program. This is a complex issue, so feel free to post additional questions. HTH, and thanks for reading the blogs!~ Amelia

244. Posted by: Sarah

     Thanks Amelia.

     So, he doesnt have a sick pay program. But he says (have not see the paperwork) saying that i acrue some extra vacation time to compensate for not having a sickday program.
     He also said that i either take vacation because i was sick or i dont get paid for those days.
     He tells me that i am an exempt salary person. Does exempt mean it is a flat pay whether i work 35 or 68 hours a week? If i am exept he is or is not allowed to tell me “hey use up your vacation because you were sick or i am docking you your salary pay?”

245. Posted by: Amelia

     Hi Sarah! You are very welcome. We are always here to answer your questions.

     Any sick leave policy should be in the employee handbook, if there is a handbook. You can certainly ask the employer for a copy of the sick leave policy.

     Many employers have a paid leave program called PTO, or Paid Time Off. PTO is a combination of vacation, sick leave and sometimes holiday pay. If the employer offers this type of program, you can be required to use PTO when you are absent for any reason. Once you have used all your PTO, if you miss additional full days, your salary can be reduced. This is also true for exempt employees with a PTO program.

     If you are being granted vacation but not paid sick leave, then the employer must pay your salary when you are absent for a full day due to illness. If you are not being paid for these sick days, contact the U.S. Department of Labor at http://www.dol.gov to file a complaint.

     Many restaurant managers are exempt employees. Yes, being exempt means you receive your salary every week, regardless of the number of hours you work. Exempt employees are never entitled to overtime. You are entitled to full payment for any day in which you perform any work at all — even 5 minutes of work, even from home. However, the employer can deduct your vacation time to meet that obligation. Example: Employee works 5 minutes on Thursday. The employer must pay her for the day, but can deduct 8 hours of vacation from her balance. This is perfectly legal and very common in the restaurant industry.

     Many employees believe their vacation time can be used only with their permission but this is not correct. The employer can require that you use vacation time for any unscheduled absence. Often as an exempt employee you do not have the option of taking the time off unpaid instead.

     As an exempt employee, if you work fewer hours than the employer expects, you can be disciplined or terminated but unless you miss an entire day of work, usually you must be paid your entire weekly salary. If you do a search, there is a wealth of information on the site about exempt employees.

     To summarize, the employer has the right to say “You must use your vacation time for the days that you missed.” The employer does not have the right to give you the option of taking that time unpaid, unless he offers a legitimate paid sick leave program, and you have used all your sick leave. HTH, and thanks for reading the blogs!~ Amelia

246. Posted by: JR

     Hi Amelia,

     I just found out today my employer wants to change my pay plan. I am an exempt salaried employee and I am paid $50,000 a year in salary and a bonus program of 25% of net profit produced. The new plan would cut my salary to $30,000 a year and move my bonus up to 35%. The company has about 50 employees working the same position as I do throughout the country. To the best of my knowledge the new plan is only going to affect about 4 of the 50 employees. All of us being affected are located on the west coast and I live in Oregon.

     The bonus program sounds great, but the problem is no one in my area has produced enough net profit to come close to off setting the $20,000 we would be losing in salary. I have been with the company for 11 years and have been on the same pay plan since day one.

     What are my options? Is this something that is legal to do?

     Thanks,

     JR

247. Posted by: Amelia

     Hi JR! It is legal for an employer to reduce your salary and change your bonus plan.

     The new plan would not be legal if the 4 employees were singled out for salary reduction due to race, color, religion, sex, age, disability, pregnancy, etc. However, if this change is being made for a valid business reason (such as low profits and high salaries in territories on the west coast) then it may be legal. Under the federal Ledbetter Act, employees have years to sue when an employer commits discrimination in pay. If coworkers with similar jobs in other regions are being paid significantly more, that may be illegal discrimination in pay. (Or, the employer may have reduced your salary to keep it in line with that of employees in other regions.)

     Your options at this point are probably to accept the salary reduction or to quit. Usually when an employee quits due to a significant reduction in salary, the employee qualifies for unemployment benefits. However, if you work even one day under the new arrangement, you have accepted it. If you quit after that point, you do not qualify for unemployment benefits.

     This is a judgment call, but you might be better off staying on at the new, reduced salary while you look for a better job, rather than collecting unemployment while looking for a job in this economy. The old adage that “it’s easier to find a job when you have a job” is still true. Our advice is that you accept the change, and launch a wholehearted effort to find a better job.

     It you believe that this salary reduction is discriminatory, you can certainly file a complaint with the Oregon Civil Rights Division at http://www.oregon.gov/BOLI/CRD/index.shtml or the EEOC at http://www.eeoc.gov. You can do this while still working and looking for another job. HTH, and thanks for reading the blogs!~ Amelia

248. Posted by: Joshua Wilkins

     I was fired today for having a felony conviction. When I filled out the application I disclosed I had a felony conviction, I also disclosed this information during my interview. I was hired anyway. I believe the company I worked for is claiming the $2,500.00 tax credit for hiring felons, then terminating them with in 3 months. I was told by the HR director that I shouldn’t have been hired in the first place due to my felony conviction. Due I have legal recourse? Who can I contact to investigate whether or not this company is hiring for the tax credit and then firing three months later? Due to the short term employment I will not be eligable to recieve unemployment benefits. Please help.

249. Posted by: Amelia

     Hi Joshua! This is a tough situation and you have our sympathy. Kudos to you for disclosing your felony conviction on the application and during the interview!

     Unfortunately in most states an employer can fire any employee at any time for any reason or without any reason — a legal tenet called “employment at will.” It appears that the employer has invoked this privilege, although we agree that this was a poor reason. You could hire an attorney and pursue a wrongful termination suit. However, our guess is that you would spend a lot of money in legal fees and gain nothing.

     It is unlikely that this company is intentionally hiring felons and then terminating them to get tax credits. It wouldn’t be cost effective. Even at the minimum wage, the employer would have to pay more than $2,500 to the full-time employee in 3 months, not to mention benefits, training, and administrative costs, so a company that did this would actually be losing money. You don’t say which state you are in, but the federal WOTC only gives a tax credit for hiring a felon who has been released within the past 12 months or is participating in a work-release program. Even if the company were doing this, it would be legal. The WOTC does not require that the employer give workers a permanent job, only that they work 120 to 400 hours. (The paperwork for those programs is so extensive that most companies that qualify don’t even file for the tax credits. They would rather focus on finding the best employees for the job and being successful at their business.)

     It is far more likely that the HR director was telling you the truth. The company would not normally consider hiring someone with your conviction record, but the hiring manager made an error in judgment. Once the company realized the mistake, they corrected it. You are much better off focusing on overcoming this obstacle — looking for a good job with a felony conviction — rather than being distracted by other issues.

     If you are open to relocation, you might consider moving to Wisconsin. In that state, it is illegal to discriminate against an applicant based on conviction record. Otherwise, being a felon is going to be a significant obstacle to overcome in the job search. HTH, and thanks for reading the blogs!~ Amelia

250. Posted by: Kathy

     Hello again Amelia,

     Hope your having a great new year so far, I have a somewhat of a silly question. Are we responsible for supplying bottled water / cooler and or drinking fountain? We have always had this in the past but recently have undergone a reorganization and decided to eliminate our water coolers in our administrative office building. Employees have access to break rooms with tap water and refrigerators where they can keep their own bottled water. Just wanted to check if the company is required to provide water coolers?

     Thanks
     Kathya.

251. Posted by: Amelia

     Hi Kathy! Happy 2011 to you, too! This question is not silly — we get many queries from employees and workers on this topic. There’s even an OSHA worker safety regulation about it. As an employer, you do have to provide access to water in the workplace throughout the day, but tap water is fine.

     Under OSHA CFR 1941.141 requires an employer to provide “potable” water in the workplace. That simply means water that is safe to drink, like tap water. While many people enjoy bottled water, it is not necessary. As long as your employees have access to tap water in the break room, that fulfils the requirement. The purpose of this worker safety regulation is to prevent employees from becoming seriously dehydrated, so the employees do need to have access to the tap water all day, or at various times during the day, not just during meal breaks.

     If there was no tap water available, as on a construction site, then you would have to make arrangements to provide drinking water. However, there is no requirement that it be bottled water or spring water. HTH, and thanks for reading the blogs!~ Amelia

252. Posted by: joe

     1) I was told my position was being eliminated, they demoted me and I took a salary cut. This was about a year ago. I was the only person in my company that this happen to, other people with my title in different offices across the country stayed with the same title. A month ago they posted the position that I had, that I was told was eliminated on the company web site. I asked what was happening, this position was eliminated. I was told “that in a branch like ours, this position is required”. I also asked why I cannot go back to this position. I was told that I would have to apply though my company’s web site. I applied, was interviewed and the position was given to a person outside of the company. Is this possible?

     2) I also have reservations that my manager is racist. When he first was transferred to my office, a few days later he asked, why am I being paid the salary that I am being paid. I responded to him that that was the amount I was offered to leave my last job and move from across the country to work at this company. And that I have been receiving raises based on my performance and also yearly company bonuses. He slowly but surely laid off people of my same race due to lack of work or job performance. He was unable to do this with me. When my son started to have teenage problems, I had to take a few days off due to this. He sat me down and asked me about this and what was my plan, he needed me at work and wanted to make sure that I had this under control. I told him that it was going to be under control, my son after Christmas break was going to attend a military school. A few days later is when I was told my position was eliminated.

     3) When I took the demotion and salary cut also came a new job which required me to get a security badge for one of our clients. At first I was unable to due to an arrest in my younger days. It was no problem all I had to do was show that I was never convicted and that the case was dismissed. As soon as I alerted him of this, at the end of the day I had a warning letter stating if I was unable to get this badge, I would be terminated due to the need for me to have this badge to perform my primary duties. I was able to get the information I needed and I was able to get this badge. When I informed him of this, and that I would be able to access the site, when do I start in this new position? I was told that the position I needed a badge for is going to stay with the person who has it and no change would be made. I was given a different area of responsibilities part of those was still doing the same job I was doing before but in my designated area and the other personnel (with my new demoted title) absorbed the other areas of my responsibities.

     4) I truly believe that he does not want me in my previous position due to the amount of salary that my company would have to pay me, and he will not let that happen.

     5) There are other things he states which lead me to believe he is a racist, I will not go in to detail this is long enough.
     What do you suggest I do or what can I do? If anything?

253. Posted by: Amelia

     Hi Joe! We agree that your high salary was a problem for this supervisor, but the way he is handling it is legal. Your post contains a lot of issues so we have numbered them for discussion.

     1) This is completely legal and appropriate. The employer eliminated the position. Then the employer’s business needs changed, and they decided they needed to hire someone for the position, a year later. They did so. They did the right thing by letting you interview for the position. They were under no obligation to hire you. If they did hire you for your old job, they would be under no obligation to reinstate you to your former salary.

     2) We agree that this is the crux of the problem — the supervisor thought that you were being paid too much for the job, compared to other people within the company. They could have simply reduced your salary. Instead they tried other tactics, like eliminating the position and eventually hiring someone new, probably at a lower salary. There is nothing inappropriate about this.

     In most states, you are entitled to take unpaid time off work when a son or daughter under 18 has a serious health condition, but not when they have school or social problems. Three days off is a lot, for an unexcused absence. The supervisor had a right to question this. You probably overshared when you told him that your son would be sent to military school (rather than simply that the problem was solved.) If your boss felt you were being overpaid, it was probably not very diplomatic to let him know you can afford military school for your son.

     3) The employer can require that you get a security badge with the client as a condition of employment. We see nothing inappropriate in the way this was handled. The supervisor did the right thing in informing you that if you could not get a security badge, that would be a problem. It is not clear why he then changed your duties, but the company has the right to do so.

     Arrests cannot be considered in hiring, promotion or pay in most cases. If the employer decided not to restore you to your former position based partly on this new knowledge of your arrest record, that would be unlawful.

     4) We agree that the supervisor thought you were overpaid and took steps to correct that situation. You are mistaken about one thing. If the company had hired you for the newly recreated position, they would have been under no obligation to restore you to your previous salary. If you made $100,000 before, they could decide that the position now pays $50,000 and pay you that amount. In fact, this might have been one factor in thier decision. They might have felt that you would be less than thrilled to be offered the new salary. This supervisor also may have thought all along that you were not the right person for that job, for factors that have nothing to do with race.

     One unintended result of the Ledbetter Fair Pay Act passed in 2009 is that it is more difficult to pay one employee a higher salary than people of a different race or sex in similar jobs, without facing charges of illegal discrimination in pay. So your former high salary could be an unacceptable liability for the company, now.

     It is also possible that the changes you are blaming on the supervisor are actually company policy. He may have been told that part of his job in this position was eliminating performance problems that had been allowed to fester, and dealing with the fact that you were being overpaid.

     One thing that is clear from your remarks is that you never really developed an alliance with this new supervisor. You are not on his team, so to speak. It is fairly common in the business world for employees to resent or reject a new supervisor. However, the bottom line is that he makes the employment decisions. If you cannot develop a strong working relationship with him, your days in this job are probably numbered.

     5) It is actually legal to be a racist. (In some ways, your boss is a product of his upbringing and cannot help what he is. However, he can help how he acts.) What is illegal under Title VII of the Civil Rights Act is making employment decisions based on race, color, sex, religion, national ancestry, etc. It is also illegal to offer different pay or working conditions based on race, sex, age, disability, etc. Nothing you have told us so far indicates that this supervisor is committing illegal discrimination. You say he addressed performance problems and terminated people of one race. If people of other races had similar performance problems that were not addressed, this may be illegal discrimination. However, if he addressed all the performance problems, then this is not racism.

     Comments at work can be illegal discrimination. In one recent case we reported, a female supervisor repeatedly said, “one black paramedic is one too many.” That is illegal discrimination in the workplace.

     You can certainly make a tactful request for feedback on why you were not chosen for your former position, and this might provide valuable insight into the situation. For example, there may be performance problems or expectations that you were not aware of. If the company has an HR department, it might be better to approach them about this matter, rather than your immediate supervisor. If you believe that race was a factor in that decision, or that there is illegal discrimination based on race at your workplace, you can file a complaint with the EEOC at http://www.eeoc.gov. It is illegal for an employer to retaliate against an employee who files a complaint in good faith. However, nothing you have told us so far is evidence of illegal discrimination.

     Some states have different family leave and discrimination laws that might offer you more protection. Since you don’t mention which state you are in, we only addressed federal issues.

     This is a complex situation, so feel free to post additional information, particularly on the topic of discrimination or any other questions you might have. HTH and thanks for reading the blogs!~ Amelia

254. Posted by: joe

     Hello again and thank you for taking the time to respond. I understand what you are saying, they can do that.

     1) One of the things I did not state was that when he first arrived, he promoted a person to the title that I had before. They are both Caucasian and I am Hispanic. We use lack of work in the company to get rid of people for anything. He is the type of boss that if you do not do it his way it’s the highway and he will make it happen, if you try to question him and or ask him, he will reduce the work load and lay you off for lack of work. I have seen him do it way too many times.

     2) I am the only Hispanic male in my department in this position.

     3) Well I do believe he does things that are not warranted. The thing with me is what he says. The last thing he said was that he arrived at home one night to find his grandson watching Dora the Explorer, and now he is learning this Spanish SH$T, that really bothered me at another time he were outside of the office and some people were across the way playing music very loud from their car, “what kind of ………he did not know what to say since I was there ……………. Miguel music is that?” by the way my name is not Miguel but he used my name. He was mad and disgusted that he had to hear this type of music.

     4) The other guys he let go of he would also ask them to do things for him, like go buy him lunch, buy him cigarettes and items like that.

     5) I am presently very upset and I have talked to a lawyer about this and he said I may have a legitimate suit.

     6) The thing it is that I personally like this company, it is just this boss that I have. Why sue this company for the actions of this manager? He does like Hispanic woman, he is always making comments on them and at this time all the support admin staff is all Hispanic woman.

     7) This is the first time in my life that I am bringing up an issue like this due to race, never has this happening to me or have I ever experienced anything like this since I have started working at the age of 16, I am 38 now. I am not trying to make something out of nothing.

     8. It really bothers me and I feel like I have been cheated out of something. I have to trade in my car to a less expensive one, I have been using my savings to make ends meet and pretty soon I will most likely once my saving runs out it will be difficult to pay my mortgage. I will stop here. I do thank you for your time and I appreciate your response to this.

255. Posted by: Amelia

     Hi joe! You are very welcome! We are always here to help. Again, we have numbered your comments for easy reply. Based on this information, there may be illegal discrimination here.

     1) It is legal for a supervisor to promote an employee. If you were demoted and the other employee was promoted due to race, that would be illegal discrimination. However, the company can probably make a case that there were other reasons for the changes in staffing. It is cowardly for the company to use lack of work as an excuse to fire people, or demote them, but it is not illegal. In most cases, the employer could have simply said, “You are making too much money, we’re going to demote you.”

     2) If you live in a state where 50% of the population is Hispanic, and there are 100 people in your position, it is probably illegal discrimination in hiring to have only one Hispanic employee. But if there are only a few people who hold the same job as you, this is not necessarily discrimination. Even if it is, it is discrimination against the Latino applicants who are not hired, not against you.

     3) These negative comments about people of Hispanic heritage and about the Spanish language are unacceptable even if they are made away from work. Negative comments of this kind can create a hostile work environment. That is a very specific type of discrimination where members of a protected group are targeted and made to feel unwelcome in the workplace. In this case, negative remarks about Hispanic people do that.

     4) If he created different working conditions for Hispanic employees by expecting them to do personal errands for him, that would be illegal. But a supervisor can show favoritism towards certain employees who are his buddies or personal friends. This is not illegal. It would be illegal to treat all Caucasian employees better than all Hispanic employees, or to treat all male Caucasian employees better than all male Hispanic employees.

     5) Great! You should consider taking the lawyer’s advice.

     6) You ask, “why sue the company for the actions of this manager?”. The answer is because the company is legally responsible for the manager’s actions. Either they are unaware of his actions, or they support them. By law, an employer has to train managers not to act in ways that illegally discriminate against employees. If no one says anything, this manager will continue to act this way, and others might imitate him. However, there are some steps that you can take without suing the employer, that might solve this problem. We discuss them below.

     7) That’s good to know. Unfortunately, while prejudice can be subtle, illegal discrimination usually is not. A manager can commit illegal discrimination against Hispanic men and not Hispanic women, and still be breaking the law.

     Here is our recommendation as far as this manager goes: Sit down and make written notes of all the incidents where the supervisor said negative things about Spanish or Hispanic people, or took what you consider to be negative actions based on race. List the date, time and any witnesses who were present. This is so you do not forget any of those incidents. For the present, keep this list separate from the issue of your demotion.

     Address the issue within the company. A company of this size should have a corporate HR office. Many companies will also have a toll-free number or hotline where employees can report illegal discrimination. Contact them and tell them you believe you are the target of illegal discrimination based on sex, race and national ancestry, and of a hostile work environment. They will investigate the issue. If they find the manager has acted inappropriately, they will put an end to it. A discrimination case is much stronger when you bring it to the company’s attention before filing a suit. A good company will immediately reassign the manager, or make him stop this conduct. Even if their investigation determines that this was not illegal discrimination, it will probably end.

     If the company does not address this issue, or the discrimination continues, you should file a complaint of illegal discrimination in the workplace with the federal EEOC at http://www.eeoc.gov. They will conduct an investigation and if they find there is evidence of illegal discrimination, they will sue the employer on your behalf. All of this is at no charge to you. Usually, it does not go this far. Normally the company will cooperate with the EEOC and follow their recommendations to rectify the problem, which may include a promotion, back pay, damages, etc. (After the EEOC investigation, you can hire your own attorney to sue if you would prefer, but then you need to pay the attorney. The EEOC will not investigate any complaint where you have already filed a lawsuit, so always go to the EEOC first.)

     8. We are still not convinced that the demotion was unwarranted. For the time being, you need to find a way to live within your current salary. There is no guarantee that you will ever be promoted or paid more. It is natural that you feel cheated, but in reality, you were being paid more than other people with the same job and there was never a guarantee that the situation would last forever.

     Our recommendation is that you treat the demotion as a separate issue. You can certainly go to HR or call the hotline and tell them that you believe illegal discrimination against male Hispanics was a factor in your demotion, and in you not being hired for the recreated position. (After all, you had unique qualifications for the position.) You would follow the same process. If the company does not resolve this issue to your satisfaction, you can report it to the EEOC. Again, it is illegal for an employer to retaliate against an employee who files a complaint in good faith with the EEOC. Even if the EEOC eventually finds that there was no illegal discrimination in the demotion, the employer cannot take revenge against you. Often employees find that working conditions improve a lot, once the manager realizes that the EEOC is watching.

     Some employers try to make workers feel disloyal for reporting them to HR or the EEOC. In fact, you are doing the company a favor by making the aware of a problem before it results in a multi-million-dollar lawsuit. A well-managed company would want to know this information. HTH, and thanks for reading the blogs!~ Amelia

256. Posted by: Kelly

     Hi, Amelia – I work full-time with a company in Ohio. I’ve been employed here for about 7 years, although about 14 months ago, I moved into a new position with this same company. Both prior to and after the move to the new role, I was in a salaried exempt position. I have always received superior performance reviews, including the most recent one received just last week.

     1) Yesterday, I was informed that after a recent company-wide evaluation, my current role was incorrectly classified as exempt, and is changing to an hourly non-exempt position. I was told in no way is this a reflection of my job performance and nothing is to change, except now I will be eligible to receive overtime pay. I believe there are about 3 or 4 other people in my office that are transistioning as well (they share the same job title). My supervisor enouraged me to take advantage of the overtime, in no way suggesting that I restrict my hours. I’m not overly dismayed, as I typically put in more than 40 hours per week.

     2) However – apparently hourly employees are required to have one week’s pay held in reserve until their employment is terminated. So, at the onset of the change, my company will hold one week’s pay, or they have offered to ‘advance’ me the week, but will withhold one day’s pay out of the next 5 consecutive pay checks. This is a major issue for me. I am recently divorced and have four children. Going without a week’s pay, or trying to manage on a temporarily reduced salary will be a real hardship.

     3) I asked my manager if the eligibility for overtime is going to be retroactive to when I started in this role, but of course, the answer is no – even though there is no change to my actual job duties or title. I have always recorded my time, and during my time in this new role, I have put in approx 100 hours of overtime.

     4) Additionally, I’ve had difficultly scheduling and using up all my PTO during this time (which we use or lose), and during my time in this new role I have missed out on taking about 65 hours of PTO. Irrelevant, I know – but just wanted to demonstrate my level of committment to the job. Considering all this, I feel angry about having to meet the requirement of having the week’s pay held in reserve. I love my job (for the most part), and don’t want to make any awkward waves, but I’d like to suggest that they pay me the back overtime – then the missing week’s pay wouldn’t be an issue. Do I have any recourse?

257. Posted by: Amelia

     Hi Kelly! There are several issues in your post, so we have numbered them for easier reference.

     1) The employer is acting in a responsible and ethical way by switching you to non-exempt status. Several federal court rulings in the past year have restricted which employees can be exempt. Many companies are being pro-active by switching employees in questionable roles to non-exempt.

     2) This is a common misconception, but in reality there is not a company in the U.S. that holds a week’s pay until termination. It would be illegal to do so. What the employer does, is take a week to process payroll. Example: suppose the payroll week ends on January 7. The employer issues payroll checks for that week on January 14. This gives the employer a week to turn in payroll records, figure overtime and deductions, and cut the checks. If the employer did not do this, the payroll week would end at midnight on January 7 but the employer would be issuing paychecks for that week at 4 pm on January 7. Obviously, it would be impossible to generate accurate payroll checks to hourly employees under those circumstances.

     Some companies do issue paychecks to exempt employees the same day, because their hours do not vary. However, most companies make both exempt and non-exempt employees wait 1 to 2 weeks after the payroll period ends to receive the paycheck. This is normal operating procedure at companies throughout the U.S. and there is really nothing the company can do about it. Even if they wanted to, it is impossible for the employer to pay you on January 7 for the work you did on January 7 as an hourly employee. Every employer has an established payroll procedure with a defined payroll cycle. It would be impossible for them to create a new payroll cycle for a single employee.

     The company is actually being generous by offering to advance your salary for one week and deduct a day’s wages from each of the next 5 paychecks. We suggest that you take them up on that offer. Depending upon how much overtime you work during those 5 weeks, you may not notice much difference in your check.

     3) It is important to remember that this issue is not in any way related to the issue of the pay cycle. The employer is not volunteering to pay you overtime for the past 14 months, but you may be entitled to it. If your company has an HR department, approach them and tactfully ask to be paid for the overtime you have worked in the past, since you took this job. If they refuse, file a wage complaint regarding unpaid overtime with the U.S. Department of Labor at http://www.dol.gov. Also encourage your coworkers to do the same. The Department of Labor will investigate. If they find that you should never have been classified as an exempt employee, they will force the employer to pay you overtime for a maximum of 2 or 3 years. Often, it never goes that far. As soon as the company finds out that you have filed a wage complaint, they may simply pay you and your coworkers the overtime. It is illegal for an employer to retaliate against an employee who files a wage complaint in good faith.

     4) You’re right — you’re a very dedicated employee, but this is unrelated to the other two issues. We will say this: it is probably unwise for any employee to forego using all PTO or vacation time available to them. In the long run, employers do not appreciate it, and it hurts the employee. Studies have shown that employees who use their vacation time are actually more productive. By not using all your PTO, you are only cheating yourself and your family. HTH, and thanks for reading the blogs!~ Amelia

258. Posted by: Eva

     Hi there. I work for a California based, privately held company. Recently they announced that they have scheduled training sessions beginning at 7:30am and running through 8:00pm, which includes dinner. I am an exempt employee and was told that the “bonding” dinner is mandatory. I expressed concern as I have 2 children 8 and 6 and their drop off /pick up and homework requirements. I was instructed to obtain my children’s homework from their schools in advance and have my children do it in advance of the meetings. The drop off issue in the morning, I am unable to drop off my children before 7:45am and pick up is no later than 6 pm. I was told that this is just a part of being a parent and my boss went as far as to tell me that she was able to handle it when she was a single parent and so should I. Though I have a good job, I feel that the company is really overstepping their bounds by infringing on my personal time. I am wondering if this is legal. Since the decline of the market, I find that working through lunch is expected and even though I am exempt, my time is watched and accounted for up to the minute. So I have trouble giving the company any of my personal time. Your thoughts??

259. Posted by: Amelia

     Hi Eva! This is a tough situation and you have our empathy. Unfortunately, yes, this is entirely legal in California and every other state. There is no law that an employer must provide a good work/life balance for any employee. By law, the employer must expect the same performance from a single parent as from an employee with no children, or a married employee. Having different expectations would be illegal discrimination.

     You have been accustomed to thinking of the time after 6 pm as “your” personal time. However, from an HR perspective, an exempt employee can be required to work any number of hours per day or per week without additional compensation. The employer could require that you work until midnight every night, and fire you if you did not do so.

     The employer is not overstepping their bounds. Unfortunately, they have the right to unilaterally set your work schedule, and change your work schedule at any time. Your choice is to keep this job or be unemployed. Sorry to be so harsh, but that is the reality of this situation.

     Your employer has informed you that your working conditions have changed and will at times require you to report to work at 7:30 am or earlier, and remain at work until 8 pm or later. The best option is probably for you to find alternate child care arrangements for those times when you need to work earlier or later. The changes you have experienced are not unusual in the current recession. The average exempt employee has experienced a 25% reduction in pay in the past two years, often coupled with an increase in hours worked — and those are the ones who are still employed. So you are certainly not the only one facing these problems.

     Obviously, this job is not a great fit for your personal life, and you should begin to look for a better one. However, you are probably better off keeping this job until you can find something better. HTH, and thanks for reading the blogs!~ Amelia

260. Posted by: Kathy

     Hi Amelia,

     Our company (in KY) is planning to have 2 temporary 1 week production shutdowns. The first one to be during the memorial day holiday (05/30 – 06/03) and the second during the 4th of July (07/04 – 07/08). One of the options to do during the time is having a production shutdown with a definite recall date and having employees file for unemployment during these weeks. My question is if we would still need to pay out holiday pay if it is a temp. shutdown for all production employees and plan for them to collect unemployment during this time? Also would this be in violation of any labor laws?

     Thanks
     Kathy

261. Posted by: Amelia

     Hi again Kathy! These furloughs would not violate any federal or state employment laws as far as we can tell. Your employees could file for unemployment benefits for the week of each shut-down. This will probably result in a deficit in the company’s unemployment reserve account that will increase your unemployment taxes in the future, but it would be lawful. (You may be able to reduce your unemployment rate by making a voluntary payment, and that may be much cheaper than paying your employees for the two weeks. See the link below.) Of course, to qualify for unemployment, your employees will have to look for a job during the week they are off, and they may be required to look for a full-time job.

     Holiday pay is somewhat of a gray area in this scenario. If you pay workers for Memorial Day and July 4, that amount will be counted as income and deducted from their unemployment benefits for the week. There is actually no law that requires any employer to offer paid holidays to workers. As an employer, you set the policies regarding paid holidays if you choose to offer them. You could certainly change company policy so that employees on a week-long furlough, who did no work at all during the payroll week of a holiday, were not entitled to holiday pay. If you do so, we would advise you to let employees know in writing several weeks before the holiday of this change in policy.

     Our usual qualifier applies here. If the furlough or change in holiday pay has a disproportionate effect on employees in a protected group (race, color, sex, religion, national ancestry, etc.) then it may be de facto discrimination. For example, if this policy results in virtually all of your Hispanic employees losing their holiday pay, while the group of employees who are still paid for holidays are primarily non-Hispanic, that would be illegal discrimination. This is true even if there are other differences between the two groups, such as exempt vs. non-exempt employees. Otherwise, we see no real problems with this plan, and kudos for thinking ahead! HTH, and thanks for reading the blogs. We are always here to answer your questions!~ Amelia

     Read more about this at: http://www.oet.ky.gov/des/ui/emguide/page20.asp

262. Posted by: Carly

     Hi Amelia,

     I am an exempt salaried employee in Colorado. I am trying to understand my rights as a salaried employee. We are required to work 45 hours per week (9 hours per day). If we need to leave early to let’s say go to the dentist an hour or two early, we are required to make up the time. Our boss just recently told us we are to work a 9 1/2 hour day if we take a break. He also just recently told us that he wants us to work more hours and one cannot be devoted to both their job and their family. He has even told me that my having a family is a problem, even though when he brought me in to the office a salaried employee, he was very aware I am married with two children. How much of that is legal?

     My other question is…
     I went to work for my 9 hours on Monday, on Tuesday I went to work feeling awful. Tuesday mornings we have meetings and this is when the above info was brought up. As the day progressed I felt worse and worse, I ended up going home after six hours of work. On Wednesday my condition had not improved and I called into work sick. After a few doctors appointments, blood tests and a CT scan, Thursday I went into surgery to have my appendix removed. I was released from the hospital on Friday with a doctor’s order not to return to work until Monday, in the form of a doctors note which I gave him. However the whole time I was home I was checking email, and doing what could be done from my computer at home, and against doctors orders went to work (for a very short period of time, about an hour, not a big deal) to help my coworkers out since I wasn’t able to help them via email or over the telephone. We do not have a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability, but we do get one week vacation time per year. Does he have to pay me for the week, or do I have to use my vacation time to compensate for my lost time/wages?

263. Posted by: Amelia

     Hi Carly! There are a number of issues in your post and we will address each of them in turn, but everything the employer is doing is legal in Colorado.

     The employer has the right to establish performance expectations for exempt employees, including the schedule and the number of hours worked. In fact, he could require you to work 20 hours per day without additional compensation, and discipline or terminate any employee who failed to do so.

     Many employees think that exempt status means that their work schedule is flexible. This is not true. Exempt status simply means that the employee is not entitled to overtime regardless of how many hours she works per week. Many employers would expect an exempt employee to work a full day and not leave work early unless there is a medical emergency (like an appendectomy!) and to schedule routine dental appointments (for herself or her family) on her days off.

     In terms of saying “one cannot be devoted to both one’s job and family”, it appears this employer is trapped in the 1960s. Most enlightened employers including many larger corporations recognize that even single employees have a family and a personal life, and strive to facilitate a work/life balance because it makes employees more productive over time. So this attitude is antiquated, but it is legal as long as it applies to employees of both sexes.

     If the employer told female employees that they had to choose between their job and their family, but not male employees, that would be illegal discrimination based on sex. If he refused to hire women who were married or had children, but hired men who were married with children, that would also be illegal discrimination based on sex. But we see no indication that is true. Presumably, there were employees of both sexes at this meeting where the employer said he expected everyone to work more hours.

     It is reasonable for the employer to have one set of standards for all exempt employees, and expect workers to meet those standards regardless of whether they are married or single, have children or not. Even though the employer was aware that you were married with two children when you were hired, he has the right to expect the same performance that an employee who was single would deliver. We don’t see any indication in your post that you expect special treatment, but just to be clear, you should not be penalized for having a family, but neither does it entitle you to time off or special consideration.

     As far as the appendectomy, it is just unfortunate that you had this health crisis immediately after the employer told everyone they need to work more hours. You showed dedication by working from home during your recovery. Frankly, the employer should not have allowed you to come to work — even for a few minutes–until you had a doctor’s release, but we will chalk that up to his poor judgment.

     From an HR standpoint, the employer must pay you for the time you missed, but he can require that you use your vacation time for the days missed. The federal FLSA or Fair Labor Standards Act (the law that covers exempt employees) requires that when the employer has no bona fide paid sick leave plan, an exempt employee who misses a full day of work must be paid for that time. That law also requires that an exempt employee who does any work at all during the day, even from home, must be paid for the day. (The employee can be disciplined or terminated for not working the expected hours, but must be paid for the day.) However, that law addresses the amount on the employee’s paycheck — not how that time is tabulated. There is nothing in the FLSA that prevents an employer from deducting a day of accrued vacation when an employee misses a day of work due to illness. In the current business environment at your company, it sounds like if you do not use vacation time, you may be disciplined for missing too much work time — even though it was for a good reason.

     If the employer has 50 or more workers within 75 miles, you may be entitled to unpaid, job-protected leave under FMLA, the Family and Medical Leave Act. The employer would be required to offer FMLA to you within 5 business days. You could not be disciplined or terminated for taking time off for a serious health condition under FMLA. However, FMLA is unpaid. There is no similar law for smaller employers in Colorado.

     There is no federal or Colorado law that an employer has to provide paid vacations to workers. If an employer does provide paid vacations, the employer establishes the policies surrounding vacation time. In this case, the employer has decided that employees must use vacation time for sick leave when they miss a few days of work. That is harsh, but legal if the employee is not covered by FMLA.

     If the employer had different policies for employees of another race, sex, color, religion, national ancestry, etc. then this would be illegal discrimination. However, from what you have told us, this is just an employer with an antiquated view of the business world whose policies are within the law. HTH, and thanks for reading the blogs!~ Amelia

264. Posted by: Carly

     Hi Amelia,

     Thank you for answering my questions. I guess this leaves me with another question. When I return to work Monday I will be required to turn in a time sheet, and in that time sheet I will have to put that I was out sick. I have been saving my vaction time for almost a year and have asked to have a week off in March, which has been approved. (In June I will be eligable for another week.) From this time sheet I know my employer will deduct my pay for the time I was out. We are always deducted pay if we do not reach our 45 hours. Mind you that rarely happens, usually I make up my time over the weekend and then some. How do I go about making sure I get paid for the week? Do I have to volunteer my vacation time that has already been approved to be used in March?

     I have always complied with the rules he changes on a weekly basis, and I am the only woman, and the only employee with kids at home. Very rarely is my family an excuse that I cannot work. The only time I have said I cannot work due to my family is earlier in the morning than I am scheduled to come in, because my husband works nights and is not home yet. I have told him if I am really needed that I can bring them in with me until he can pick them up. He does not have a family and I’m afraid does not have any family values. I have been very dedicated to my job and feel like we are being taken advantage of. I understand that times are hard. I do everything I can for the company. I feel alot of ownership in the company as I have worked there for years. We are an electrical contractor, and I have moved my way up from out in the field (Journeyman electrician) to in the office as an estimator. Everybody is stressed out, working the hours he requires and he keeps threatening all of us with our jobs, that we are replaceable. Sorry I kind of vented to you a bit. Obviously we know that we are replaceable and that’s why we all work so hard.

265. Posted by: Amelia

     Hi again Carly! It does sound like these are difficult working conditions and you are going above and beyond the call of duty for this employer. We will assume that the company is too small for FMLA to apply.

     You do not have to volunteer to use your vacation time to cover the days that you were sick. However, if you do not, the employer has the option to discipline or terminate you for “excessive absences” or for poor performance (not working the required 45 hours per week.) That’s not fair, but it is legal. Under the FLSA, you are entitled to payment for the days you were sick, since a) the employer has no bona fide paid sick leave program and b) you worked from home at least a few minutes each day (which you should put on your time sheet.) However, whether or not you are paid is a separate issue from whether you are subject to disciplinary action.

     The employer does not need your permission to deduct accrued vacation time from your balance. He could simply pay you for the time and use your vacation without your permission. In that case, you would not have vacation available to use in March. It may be that the employer would allow you to take a week of unpaid vacation in March. As long as you did no work at all during the payroll week, this would be legal.

     You said that you were an exempt employee, but that may not be true. If the employer regularly docks your pay when you work fewer than 40 hours per week, you may be a salaried non-exempt employee. In that case, you would be entitled to overtime when you work more than 40 hours per week.

     It sounds like the only way you can be confident that you will not be disciplined for these absences is to use vacation time. The other option would be to put down your time honestly without volunteering to use vacation time to cover your absences, and see how this plays out. The employer might require you to use vacation, or might deduct vacation time without your permission. If he pays you less than your full salary for the week, you could file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. They would investigate and determine if you are an exempt employee. If so, they would require the employer to pay your salary for the week. If not, they would require him to pay overtime for the past 2-3 years. Normally we suggest that an employee discuss the situation with the employer before filing a wage complaint, but our impression is that this employer is not a reasonable person and might persecute you for raising the issue.

     It is illegal for the employer to retaliate against an employee who files a wage complaint in good faith, even if it turns out that the employer does not owe any back wages. HTH, and thanks for reading the blogs!~ Amelia

     P.S. We are assuming that you are covered by the federal FLSA, which covers employers with annual revenue of $500,000 or more, or employees who engage in interstate commerce such as using the internet at work.

     Read more about salary basis requirements under FLSA at: http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.pdf

266. Posted by: Kathy

     Hello Amelia,

     I have a I-9 related question. I’m a little confused on what to do. I had a new hire fill the I-9, gave me a document from list B & C but on the I-9 form checked off that he is an alien authorized to work and that his card’s expiration date was 06/04/09. He has been run through E-Verify and is authorized to work but is okay that an expired date is listed on the I-9?

     Thanks Kathy

267. Posted by: Amelia

     Hi Kathy! Thanks for posting an excellent question. We assume that you examined the documents presented, they appear to belong to this individual and one of them does, in fact, expire on 6/4/09. Generally speaking, documents submitted for the I-9 must be unexpired. To quote from the DHS Employer Handbook, “You may not specify which document(s) an employee must present. However, you may only accept unexpired documents.” Even if an employee who was born in the U.S. submitted an expired driver’s license, it would be illegal for you to hire the individual.

     This is complicated by the fact that the USCIS has issued extensions for work authorization documents for individuals from several countries. So, in a few cases, the expiration date on the card is no longer the actual expiration date. Usually this applies to individuals who have been granted Temporary Protected Status. For example, here is an 18-month extension for refugees from Somalia, which was issued in Nov. 2010: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f47fae8ac980c210VgnVCM100000082ca60aRCRD&vgnextchannel=c94e6d26d17df110VgnVCM1000004718190aRCRD (Sorry about the long link.)

     E-Verify basically checks to make sure the documents presented match USCIS and Social Security records, reducing the chances of identity theft or fake documents. An expired document will often pass E-Verify. This verifies that the expired document belongs to the employee. It does not entitle the employee to work on an expired document.

     Your first step is to sit down and speak with this individual. Let him know that the way he has currently filled out the I-9 indicates that it is not legal for him to work in the U.S., or for you to hire him. Ask him in a non-threatening way, to clarify this, “Carl, can you help me understand how this is filled out? Because the form shows that your work authorization expired on 6/4/09. That would mean that I cannot legally hire you.”

     We suspect that the answer will be that he hoped you would not notice that the work authorization was expired, or that he needs to renew it and has not done so. In either case, you need to let him know that he cannot work until you have the proper documentation, and he fills out a new I-9 showing that it is legal for him to work today — not that it was legal for him to work in 2009. If he says that the deadline of the document has been extended, you need to verify that on the USCIS website, print out a copy of the extension and attach it to his I-9 with a note.

     You need to not schedule this employee to work until this is resolved. He has completed an I-9 that says he cannot legally work in the U.S. at this time. By allowing him to work, the company is intentionally breaking the law by hiring an undocumented worker. HTH, and thanks for reading the blogs!~ Amelia

     Find the entire I-9 form including instructions here: http://www.uscis.gov/files/form/i-9.pdf
     The I-9 Handbook for Employers is here: http://www.uscis.gov/files/form/m-274.pdf Pay particular attention to Section 8, which lists the documents that can be accepted. In every case, the handbook specifies in the heading that “All documents must be unexpired.” This applies to all documents from columns A, B and C.

268. Posted by: Daisy

     Work for a company in TX, I was hired on as a salary (Exempt) position since 2008, now, our GM is trying to make changes from a previous Employer we both worked with prior to this company, the changes he is trying to make is my position to Non-Exempt since I have no one that works/reports to me. Can they change my position? It seems I will be the only change for this company at this location.

269. Posted by: Amelia

     Hi Daisy! Yes, an employer can pay you on an hourly or non-exempt basis. It is legal to treat any employee as non-exempt.

     It may be that your job duties never qualified you as an exempt employee, anyway. In that case, you would be entitled to overtime for the past 2-3 years. HTH, and thanks for reading the blogs!~ Amelia

270. Posted by: Brian

     I have worked for a construction company for 4 years. I work in a service department as a warranty technician, I have been paid as an exempt employee and after reading state laws I do not think that I am exempt. What do you recommend.

     Also yesterday my employer told us (4) that we are being moved from salaried to hourly which is fine but are there any issues that I should think about.

     After the employee meeting I was called into the owners office and told that they were reducing my pay from 85,000 to 75,000. They told me that it was because I am paid at a much higher rate than my co workers, and because when they hired me they thought that I would bring in more customers which was their justification for the higher pay. I have brought in several customers and several potential customers.
     Lastly would I qualify for unemployment benefits if I do not take the wage reduction?

     Thank you
     Brian

271. Posted by: Amelia

     Hi Brian! If you believe that you should never have been an exempt employee, then you may be entitled to overtime for any payroll week in which you worked more than 40 hours, in the past 2 years. You could file a wage complaint with the state or federal department of labor.

     There are probably not an issues that you should consider in accepting hourly status, since you believe you are not exempt anyway. However, be aware that if you sometimes work less than 40 hours per week, the employer can pay you for only the hours you work.

     Usually an employee who quits rather than accept a significant change in working conditions or a significant reduction in wages qualifies for unemployment benefits. It is not clear if a reduction from $85,000 per year to $75,000 per year will qualify. If you work even one day under the new arrangement, you have accepted it. If you quit after that point, you do not qualify for unemployment benefits.

     The salary reduction was probably not personal. Many employers are taking a closer look at any wage disparities in similar jobs. This is partly because the Ledbetter Act now gives an employee up to 20 years to sue for pay discrimination. The employer wants to be sure you are being paid about the same amount as your coworkers, to avoid being sued by them in the future.

     Our recommendation is that you accept the new position while looking for a better job. HTH, and thanks for reading the blogs!~ Amelia

272. Posted by: Brian

     Amelia,

     Thanks for the feed back.
     I also forgot to mention that I was recently diagnosed with Rheumatoid arthritis which can occasionally affect my work, do you think I should be concerned that by them singling me out that they may be trying to get rid of me?

     Again thanks

     Brian

273. Posted by: Amelia

     Hi again Brian! You are very welcome! No, we genuinely think that they are concerned about the disparity in salaries. Since the Ledbetter Act was passed in early 2009, many companies are taking similar steps to ensure that people with similar jobs are making the same amount. There is huge potential liability for them if they are paying you $85,000 and only paying the other employees $75,000.

     There is no need for you to disclose your diagnosis of Rheumatoid Arthritis to the employer unless you need an accommodation under ADA. (You can even take FMLA without disclosing the diagnosis to the employer.) Even if you have already shared your diagnosis with them, it is illegal for the employer to consider your disability as a factor in employment decisions. If they did so, you would have a good case of illegal discrimination based on a disability.

     But from what you have told us so far, this does not seem to be the case. It genuinely seems to be a case where the employer has decided that all the employees in your job should be hourly, and should be paid a similar amount. HTH, and thanks for reading the blogs!~Amelia

274. Posted by: Brian

     Well I do see your point however of the 4 of us in this department, I know that 1 is being paid about 40k one is at about 50k I was at 85k and I am pretty sure the 4th is paid around 80k

     I think that I am going to have to seek an attorney prior to going back to work there are far to many issues and I am afraid of returning and accepting this pay decrease if it is not legal.

     Do you have any recommendations on seeking council for this type of mess?

     Thanks Brian

275. Posted by: Amelia

     Hi again Brian! If you are looking for an attorney, we recommend one with NELA, the National Employment Lawyers Association at http://www.nela.org/NELA/. However, be aware that in most states it is legal for an employer to reduce any employee’s wages at any time, as long as the employee is informed in advance, and there is a valid business reason for doing so, rather than it being done for reasons of illegal discrimination.

     If you have a strong case, you should be able to find an attorney who will represent you with little or no money up front.

     If you believe that this wage reduction is illegal discrimination based on a disability or perceived disability under ADA, then your best bet is probably to continue working and file a discrimination complaint with the EEOC at http://www.eeoc.gov. They will investigate. If they find evidence of illegal discrimination, you will have the option of paying a lawyer or allowing the EEOC to sue on your behalf. The EEOC will not become involved if your lawyer has already filed a suit.

     Assuming that all four of the employees in the department are doing similar jobs, it would seem that the two who are making less than $55k have an excellent case for discrimination. You and the person earning $80k…not so much. But by all means, consult an attorney. HTH, and thanks for reading the blogs!~ Amelia

276. Posted by: RICK SIMMONS

     Company didn’t want to give me a raise on the books so they were forcing me to forge a monthly mileage report in order to get money. Is this legal ? I never drove to any of our 10 retail stores but that was the only way they would pay me.

277. Posted by: Amelia

     Hi Rick! You may have been committing a crime but the company probably was not. The employer’s conduct was unethical and very unusual. We suspect that upper management believed the mileage reports were genuine. Otherwise, this policy really doesn’t make any sense.

     There is no state or federal law that specifically prohibits an employer from paying workers for mileage. This is true, even if the employer knew that you were not driving and therefore not entitled to reimbursement. However, the crime of fraud occurs when someone lies for monetary gain. In this case, you were probably committing fraud by signing and filing false mileage reports. Even if your boss asked you to do so, it is still illegal. However, since this was sanctioned company policy, it is unlikely that you would be prosecuted.

     Most companies would fire any employee who falsifies company documents (milegage reports) or urges another employee to falsify documents. But that does not make the employer’s conduct illegal. HTH, and thanks for reading the blogs!~ Amelia

278. Posted by: daisy

     if I was moved from a Salary position to an Hrly Position, you had mentioned that i would be intitled to 2-3 years back of any OT hrs. correct? Now, lets say I were to bring this up to Mgmt, since I was moved to Hrly pay can I get fired for claiming this?

279. Posted by: Amelia

     Hi daisy! Being changed from salaried to hourly does not necessarily entitle you to overtime. However, the federal regulations on who qualifies as an exempt salaried employee are strict, and they are based on primary job duties, not title. If your past job duties did not meet the standard for an exempt employee, then you are entitled to overtime under the federal FLSA, the Fair Labor Standards Act.

     Normally if you file a wage complaint, the U.S. Department of Labor will investigate. If they determine that you are owed overtime, they usually force the employer to pay back wages for 2 years. However, if the DOL determines that the employer intentionally conspired to deprive you of the overtime you were legally entitled to, they may force the employer to pay back wages for 3 years. If necessary, the DOL will sue the employer for you.

     So basically:
     Employer made an honest mistake = 2 years of past due overtime
     Employer intentionally broke the federal overtime law = 3 years of past due overtime

     It is illegal for an employer to retaliate against an employee who files a wage claim in good faith — but the employer can still fire you for being rude or insubordinate. Your first step would be to tactfully sit down with your manager or HR privately, and let them know that you believe you were never an exempt employee, and are entitled to overtime for the past 3 years. No matter what the employer says, you should remain polite.

     Theoretically, it is illegal for the employer to retaliate against you for this — so no, they legally cannot let you go for this reason. However, sometimes it does happen. If your employer is completely unreasonable, you should skip this step and go directly to the next one.

     If the employer refuses to pay you overtime, you can file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. They will investigate, and if they find you were never genuinely an exempt employee, they will require the employer to pay you overtime. This is a complex situation, so feel free to post any additional questions you might have. HTH, and thanks for reading the blogs!~ Amelia

280. Posted by: daisy

     Thank you for all your responses! one more question??? At date of hire my job title is considered as an EXEMPT position, then later on took another workload added to my duties which is a NON EXEMPT position….in the job descriptions it does indicate NON EXEMPT and EXEMPT. I guess my question is shouldn’t they keep me in EXEMPT position?

281. Posted by: Amelia

     Hi daisy! You are very welcome. We are always here to help.

     In terms of your question “shouldn’t they keep me in an exempt position?” the answer is no. In fact, they might be required by law to switch you to non-exempt status, if your job duties change.

     When an employee is hired, the offer letter or other information presented is not a lifelong contract. It is merely a statement of the job conditions and policies at the time the employee is hired. The employer can change them at any time.

     Under the federal FLSA, an employee’s job duties must meet certain requirements in order for the employee to be exempt. Status (exempt or non-exempt) is based on how the employee actually spends her time — not on a title or job description.

     It is always legal to treat an employee as non-exempt. Even the CEO of a company can be non-exempt. However, the employer breaks the law when they treat a non-exempt employee as exempt. So, it makes sense for the employer to err on the side of caution. When combining two jobs, one exempt and one non-exempt, it makes sense for the employer to treat the new position as non-exempt. The employee would then be entitled to overtime in the new position, when she works more than 40 hours per week. HTH, and thanks for reading the blogs!~Amelia

282. Posted by: Eric

     Amelia-

     I have an exempt salaried employee that works our company. The employee suffered a nervous breakdown recently. The employee was off work for a week, under Dr. orders and then was released to return to work for 1/2 days until seen again by the Dr.

     As salaried employees we do not have sick days. The employee took a week of vacation pay during the off week. The employee has since seen the Dr again and has another note saying 1/2 days until seen again….the total time period covering this event has been 5 weeks..

     Since the salary paid to the employee is based on a 40 plus hour week (5x 8hrs plus 4 hours every other Saturday) and the employee is limited to 20 hours per week while under Dr. care…can we as the employer: A) request that the employee take FMLA until the employee is able to work the full time schedule..or B) reduce the employees salary in proportion the the hours that the employee is available to work..(thus making the employee non exempt now ) then reinstating the full salary when the employee is ready and available to work hours again..

     It is our feeling if we do not do something that this 1/2 scenerio could be stretched out for a considerable time period… Thanks

283. Posted by: Amelia

     Hi Eric! Many employers would say that the part-time schedule has already been stretched out for a considerable time!

     Mental illnesses of various sorts are usually a serious health condition under FMLA. Depression, bipolar disorder, schizophrenia and the like are often also a permanent disability under ADA (although some conditions like anxiety disorder may not be.) Normally an exempt employee must be paid his full salary every week, regardless of the number of hours worked. However, both FMLA and ADA permit you to prorate the exempt employee’s salary.

     This is exactly the type of situation that intermittent FMLA was designed for.

     Yes, you can put this employee on FMLA. In fact, as an employer, it was your legal responsibility to inform this employee of his (or her) rights under FMLA within 5 business days of the first absence — meaning the first week he was off. Because you did not do so, you should do so now. The employee can use intermittent FMLA 20 hours per week. Since FMLA is unpaid, you will pay the employee only half of his usual salary each week. (You could have done this from the start, but apparently you chose not to.)

     So the answer to question A) is yes, you can designate this as FMLA.

     The answer to question B) is a little more complex. You cannot legally use the employee’s mental illness as an excuse to make him a non-exempt or hourly employee. That would be illegal discrimination based on the employee’s medical condition, under ADA. However, after the employee uses all his hours of intermittent FMLA, you can require that he return to the job full-time or be terminated. FMLA requires only that an employee be permitted to use 12 weeks of leave. That would be 24 weeks of working half days.

     If the employee is still unable to work full days after has exhausted all his FMLA, he can request a modified schedule as a reasonable accommodation under ADA, the Americans with Disabilities Act. You cannot impose an accommodation on an employee — he must request it. As an employer, you have the right to decline any accommodation that is an undue hardship — but it appears that this is not an undue hardship, since you are already granting it. An exempt employee’s salary can be prorated based upon the number of hours worked in the payroll week. So he might be entitled to permanently work 20-hour weeks as an accommodation for a disability, depending upon his actual diagnosis.

     Two other things to keep in mind: Under ADA, any medical information disclosed by the employee must be kept confidential, even from the employee’s supervisor. You absolutely cannot reveal anything about this employee’s condition, even that he is “doing better”. The information must be kept in a separate confidential file and never discussed with anyone. It cannot be a factor in making employment decisions like promotions, training, lay offs, etc. His supervisor and others making employment decisions should not have access to the confidential file.

     You also mentioned that your exempt employees do not have sick days. Under the FLSA, when an employer has a bona fide paid sick leave program, and an exempt employee uses all his sick leave, he need not be paid for any additional sick days. However, when the employer has no bona fide paid sick leave program, exempt employees who are absent less than a full week due to illness, are always entitled to payment for those days. The employee must be paid his or her usual salary for the week, unless the exempt employee is absent for the entire payroll week. This would be true even if the employee had no vacation or personal time available.

     These are complex issues, so feel free to post any additional questions. HTH, and thanks for reading the blogs!~ Amelia

284. Posted by: daisy

     Hello,

     If we have employee(s) that travel to Guam since we have a facility in Guam, when we send employees to work at that facility its almost 20 something hrs to get there, how does that employee claim hours? is that employee only allowed to get paid 8 hrs since that is our work schedule or is that employee allowed to get paid the full hrs of travel?

285. Posted by: Amelia

     Hi daisy! If the employees are exempt, travel time is irrelevant. The employer is entitled to his or her full salary each week, and nothing more, regardless of the number of hours worked or spent in transit.

     Hourly employees on an assignment away from home that requires an overnight stay are covered by the federal FLSA or Fair Labor Standards Act. The FLSA requires the employer to pay workers for travel that occurs during the employee’s normal work hours. Suppose an employee normally works from 8 am to 5 pm. If he is a passenger on a plane between 8 am and 5 pm, he is paid for that time. Even if the flight lasts until 10 pm or 5 am the next morning, the employee is entitled to payment only for the portion of it that is within his normal work day.

     However, the employee is also entitled to payment for additional travel that occurs during the work day, such as taking a taxi to the airport, waiting at the airport, traveling to the hotel, etc. Bear in mind that if the travel lasts into another day, the employee is entitled to payment for travel during that work day, as well. If the total trip takes 33 hours beginning at 8 am Monday, the employee who usually works 8 am to 5 pm is entitled to payment for 16 hours (8 am – 5 pm, Monday and Tuesday.) Usually this is calculated based on the time in the employees home time zone, not the destination time zone.

     In addition, driving is work under the FLSA. So the employee is entitled to payment for any time spent driving, even if it is outside his normal work hours.

     Bear in mind that this is the minimum that your company must pay workers under federal law. You can certainly opt to pay employees more hours for longer flights. We agree that the flight to Guam is very long and it would be more fair to hourly employees for you to pay for the entire flight. However, there is no federal law that requires you to do so. HTH, and thanks for reading the blogs!~ Amelia

286. Posted by: sally

     I worked for same company for three year,when i stared @14.00 an hour but I have not recived a raise. I live in california is that legal….

287. Posted by: Amelia

     Hi sally! Yes, that is legal. As long as the employer is paying at least the minimum wage, they never need to give an employee a raise. in some states if the employer promised a raise, especially in writing, they must keep that promise. HTH, and thanks for reading the blogs!~ Amelia

288. Posted by: Jennifer

     Hi Amelia,

     I work for a company in KY. We have an employee that has been out on Workers Comp since the beginning of April. The employee had surgery on one issue but also strained his shoulder. The employee has received Physical Therapy for his strain and that has not helped. I’m not sure that the employee intends on returning to work. Are we required to hold his position? Can we legally terminate this employee?

289. Posted by: Jennifer

     Hi Amelia,

     Can an employer charge employees for safety glasses?

290. Posted by: marilu

     IS THIS LEGAL?

     Salaried exempt employees are paid on a salary basis and, in general, must be paid their full salary for any week in which they perform work. Their salary may be reduced only in the following circumstances:

     1. Employees who are absent from work for at least a full day for personal reasons other than sickness or disability, and have exhausted their PTO will not be paid for that day.
     2. Exempt employees who are absent for at least a full day because of sickness or disability, and have exhausted all their PTO will not be paid for that day. Their salary will not be reduced for less than a full day because of sickness or disability.
     3. Employees who are absent from work for jury duty, attendance as a witness or military leave may have their salary reduced by the amount of payment they receive in the form of jury fees, witness fees or military pay. Their salary will not be reduced by the number of hours or days they are absent unless they perform no work during a given week.
     4. If an employee violates a rule of major significance, his/her salary may be reduced in an amount to be determined by the Company as a penalty for that violation.
     5. Employees who work less than forty (40) hours during their first and/or last week of employment will be paid a proportionate part of their full salary for the time actually worked.
     6. Employees who take leave under the Family and Medical Leave Act will not be paid for that time unless they have accrued PTO under the Company’s paid time off policy. Their salary will be reduced by the hours missed, even if it is for less than a full day.

291. Posted by: Amelia

     Hi Marilu! Unfortunately, we are shutting down the comments section of this blog. Our staff will continue to respond to questions or concerns posted as comments on http://www.humanresourceblog.com. You can post your question or comment there. HTH, and thanks for reading the blogs!~ Amelia

292. Posted by: Amelia

     Hi Jennifer! Unfortunately, we are shutting down the comments section of this blog. Our staff will continue to respond to questions or concerns posted as comments on http://www.humanresourceblog.com. You can post your question or comment there. HTH, and thanks for reading the blogs!~ Amelia