Termination
AKD
6 Posts
We are going to terminate an employee for misconduct and failure to cooperate with fellow employees. She has worked part-time for our company for 3 weeks.
Yesterday she told me that a week before she was put on payroll (the job offer had been made, waiting on drug test results), the supervisor in the department she was being hired into sent her to pick up something from a vendor for our company, and she was not paid for this. The supervisor is telling me that this person offered to do this as a favor before she was officially working for us.
How do I handle? Do I pay her for this time on the final paycheck I will issue to her this week, or not pay her at all since she was not an employee of our company at the time she performed this?
Thanks!
Comments
If you don't pay her, you may have to deal with a FLSA claim if she goes to DOL.
If you do pay her, DOL is out, although she might make a claim that you violated the state's payday law by paying her late. In Texas, under these circumstances, they would probably find that the violation was not willfull and nothing would result as long as she was paid (unless you had a significant history of "non-willfull" violations).
In my opinion, you are better off dealing with the payday issue than with the FLSA issue.
There is a complication here. If she's hourly, it sounds like you owe her for an hour or two and maybe some mileage. If she's salaried, you have to look into whether you owe her for a full dy or multiple full days.
If you do pay her, you have to reconcile her start date with the first day for which she performed work and was paid. Consequently, you will probably also have to explain why her I-9 was not completed timely. I'd staple a note to her I-9 form as well if you end up paying her.
This has been rolling around in my head a bit now and I've had another thought. Generally, it's the employer's responsibility to record hours worked. Consequently, permittnig hourly employees to do "favors" is the same as knowingly permitting them to work off the clock. That DOL might investigate that regardless of whether the employee was paid. In the course of the DOL investigation, other employees could end up claiming uncompensated work, also. If the employee in your particular circumstance is/was salaried, but the favor occurred before their start date, you run into the other issues I raised above.