exempt employee and FMLA employee

dcaudill

I have a situation that I was wondering if anyone out there could give me some definitive advice in both of these situations. I have an assistant that is an exempt employee in that she receives paid time off when she is sick as well as paid overtime and remains at her 40 hour work week for personal time because of sick children and so forth. If I have this idea wrong, please let me know. I just think that the exempt people have the best of both worlds. I also have an employee working in shipping that has been recently placed on FMLA because of back problems. Now my assistant the exempt employee and the FMLA shipping guy are dating. Guess what? yesterday she called in with sick children and he called in with "back problems". Now my question is, can I reprimend her in any way for being so obvious about taking a day off. I want to tell her she has to take a personal day and I will not write on her hours any longer for being off. Can I simply not pay her for taking off for sick children? She only has two personal days to take and 1/2 of one of those is gone. I can see this becoming a habit. The doctor has writen on the FMLA ee's paperwork he needs to rest his back when it flares up. I want to tell him he has to go to the doctor if he takes off for "back problems" again. I am also going to tell him he can not use the FMLA for cover up for tardiness. She starts at 8:00 and he is suppose to be here at 6:00 - see what I mean? Any advice so that I don't do anything illegal to either one of them. Right at the moment I am extremely disappointed in her behavior in this situation.

stilldazed

Your question is covering multiple subjects.

My first advice would be to review how long you have been in HR and check your own perspective. You may be falling victim to one of the easiest temptations--that is to base your decision making on subjectivity. You'll get yourself in trouble very quickly doing that.

Next, review your company's policy on time off, attendance, FMLA, etc, and do what your policies direct--consistently.

In the FMLA situation with the fella, it sounds as if you are describing an intermittent LOA scenario. You have the option (if you are consistent with it and your attendance policies support the activity) to request a medical statement with each absence. There is nothing wrong with sticking to that as a requirement, but be consistent, including this situation. Require everything of this fella that you typically require from an employee in an intermitted LOA situation--nothing more and nothing less.

The same goes for the woman--require the same for her absence that your typically require--nothing more and nothing less.

The tone of your message is distrustful with these two folks. There must be a reason why, so look to yourself to identify that reason. If it is blatant abuse of your policies, the enforce your policy. If it is something more subjective, be careful. Not only does FMLA require consistent administration, but it forbids retaliation.

Finally, I disagree with your take on 'exempts' having the best situation. Salaried nonexempts actually have it best. They pay is on a salaried basis, not by the hour, which must be at least minimum wage and they are eligible for overtime. Part of the exemption for exempt staff is that they are exempt from the minimum wage requirement, i.e., they may find that a longer work week is required to get the work done.

Best wishes.

davids

There seems to be several issues here. First, you state that the assistant is exempt in that she receives paid time off for being sick as well as paid overtime. Maybe I am misinterpreting that statement, but if she is exempt, she would not be eligible for overtime. The real question is: Why is she exempt? Have you really analyzed her duties against the FLSA exemptions. If she is exempt, she would be exempt from receiving overtime pay. Additionally, if she is exempt, FLSA regulations allow you to make her use accrued time off (if your organization has a formal sick leave policy). If you don't have a formal sick leave policy or she exhausts her leave, then you would have to pay her if she performs any work in the work week. You could, however, still discipline her for excessive absences.

This leads to the second issue: Can you reprimand her for being so obvious in taking the day off? What proof do you have that her children were not sick? Perhaps, you are right that she took the day off to be with her boyfriend, but you don't really know that for a fact. I would not want to be disciplined based on presumptions.

Third issue - FMLA. You can ask for recertification every thirty days. So, no, you can't ask for a doctor's note each time he is absent. Also, a lateness can be covered by FMLA if the lateness is due to the FMLA-qualifying medical condition. So, his back could be hurting him when he first gets up (causing the lateness), but eases up later, so he can report to work.

I would focus more on the assistant and not get to involved in the FMLA issue.

marc

There are several issues layered into this onion you want peeled.

Without being overly harsh, I would begin by saying you need to do some personal research with the idea to grow your HR knowledge. The idea that you are paying an exempt employee overtime is the first issue.

Exempt and OT pay are mutually exclusive. Exempt staff can be worked 25 hours a day, 8 days a week, with not a lick of extra pay. So the fact that you are paying OT to an exempt staff person is the first issue.

2nd, I am not sure what you mean by "writing on her hours for being off." Does that mean you put her in as working even though she is off? This statement confuses me.

3rd, you are only required to pay overtime for NON EXEMPT EEs for the hours actually worked. So if you have an EE who was sick one day, but still put in 40 hours of work, no OT pay is due. You would pay her a day for sick leave and 40 hours of regular pay. You would not pay 8 hours at time and a half.

As to allowing her to use sick leave to stay home with sick kids, that is a matter of your company's sick leave policy. We do allow EEs to utilize sick leave in this situation, but lots of companies do not. That is why you must study your policy. If you allow it for some and not for others, you are setting yourself up for discrimination claims, specially if the ones that do not get it fall into a Title VII protected class. Get ready to write some big checks if that is the case.

Finally, the FMLA issues. You have big exposure here if you interfere with FMLA rights. The idea of requiring continuous DR. notes for the back problems is an issue. FMLA has specific guidelines about requesting new certifications and how frequently you can do so. Also, you have the right to get a second and third opinion if you are doubting the EEs Dr. Specific rules guide you about what the ER can do. Examine the Dr.s certification about the back problem. Intermittent leave can give you great difficulty because the nature of the issues can cause exactly what you are upset about, but would still fall under FMLA. If the certification is not specific enough, you can ask for clarification about the "flare ups" and what the ER can expect as to length of time and the like, but it is a very grey area in the final analysis.

As to the office romance issues, again, your company policy may address this issue. It can be very sticky, but again, the policy, if it exists, has to be applied consistently.

Good luck.

dbutton111

I disagree with the OT/exempt issue.

Exempt employees can ALWAYS be paid more than their salary. Doesn't matter if you pay it based on hours, type or importance of work, or any other reason at all. There is no law that says exempt employees can not receive overtime. The law only states that non-exempt workers MUST receive overtime.

We pay our exempt employees overtime often. Sometimes it is paid at straight time, sometimes at time and a half.

You do not jeopardize the exemption by paying more than the normal salary, only by paying less.

I just went through a DoL audit and she confirmed this. As does several DoL opinion letters that I am trying to pull up to provide the source of this info.