Changing an Exempt employee to non-exempt
skippy
18 Posts
We have an exempt employee who is not performing the essential functions of her job. She was depressed one year ago and underwent medical treatment and to be best of our knowledge, she is now OK - at least, we haven't heard anymore about her "condition". In the past 8 months, her performance has gone downhill rapidly. She is one hour or better late for work daily. She had been encouraged to move things off her desk so that she could undertake new challenges. The work is off her desk, but nothings replaced it. She doesn't even demonstrate common courteousies to co-workers. Looking at her job description (as she's written it up this past week in prep. for her annual evaluation), there's not much there to keep her in exempt status. The only piece left is that she supervises 13 people - who are basically on their own since she's not in to work on time and of not much use when she is there. Can I just turn this position into a non-exempt one and put this employee on the clock? I'd also reduce her benefits to that of non-exempt which would affect her sick benefit and personal time. She's been there long enough to keep her vacation benefit. Thank you.
Comments
Mcurtis
It seems that the issue here is one of performance rather than exempt status. I think I would address the performance issues first. If she claims the problems are due to her prior illness, then I would address it from an ADA standpoint(i.e., request medical certification, look at possible accommodation, etc.)Keep in mind that under ADA she still must perform the essential functions of her position with reasonable accommodation from the employer. If her prior illness is not the issue, I would meet with her and develop a performance improvement plan. I'm sure you wouldn't want a non-performer, whether exempt or non-exempt.
Under the FLSA, you apply the exemption tests to the position, not the employee. The question that surrounds exempt vs. non-exempt is: do the duties of this position, salary requirements, # of people supervised meet the test to claim exempt status? If so, then that is what the position is. If it supervises 13 employees, there is not doubt that it should likely be exempt. If this employee is not performing for whatever reasons, that is the problem here - not whether the position is exempt or non-exempt. It sounds like you have a problem employee here who has been tolerated so long that this poor performance has become accepted. You better deal with this performance problem ASAP and lay off of the FLSA actions to affect an employee.
Speaking from previous experience, clinical depression can be transitory or it an be acute. Transitory depression usually passes with time and changing circumstances. Acute clinical depression can be long term and even life-long in some cases. In either case, with proper medical treatment, the employee should be able to perform to expectations,in most cases.
Now let's talk about you real issue her- her job perforomance. I believe you have been hoping that the FLSA would let you avoid dealing with the real and tough issue of this employee's performance. Avoidance is not the answer here, either for the employee, or the company. Tough as it is, you need to deal with the performance issues both for her sake and the company's.
I am surprised that you allow employees to write their own job descriptions. I have always taken the position that it is the company's perogative to define the job, and set expectations for that job. If I let every employee define their own job, I would have 111 CEO's and no machinists in my machine shop!
As you prepare for this Performance Evaluation you need to have your own description of this employee's Job Duties. If you do not have an existing description for the job, develop one of your own. You should have clear in your mind which of the duties represent the essential functions of the job, and what the expected level of performance is for each essential function. These functions and expectations are what you should discuss with the employee. Be prepared with specifics showing how the employee meets or fails to meet each expectation, and set target dates for the employee to begin to meet or exceed each one. Finally, as another respondent states, set regular "check-up" dates to review progress,and offer encouragement, or render discipline as appropriate.
If, during the Performanc Evaluation, or a check-up meeting the ADA issue arises, you should be prepared. If your organization has an EAP (it certainly sounds large enough to) then have contact information available to share with the employee. Consider calling the EAP yourself, and discussing the issues and asking whether they would recommend a "management referral" (this is a required contact with the EAP as a part of the requirments for the employee keeping their job.)
Finally, know your FMLA and ADA policies and procedures. Be prepared to put those processes into action if need be. Either transitory or acute depression would very likely be considered a "serious health condition" under the FMLA.
If serious enough acute depression could arise to the level of a Disability under the ADA. Know what your rights and responsibilities are before hand, and be prepared to act accordingly if the issue arises.