My SPOILED Employee!!

jajwanda · July 2003

This just gets even more outrageous as we speak!! For those of you that read my last posting about my spoiled secretary, listen to what's next. She has made friends with a gentleman that works across the hall. He obviously feels comfortable with coming in our office & sitting across from my secretary, will call her Alice, & he has ongoing conversations with her quite frequently.
Ok, first of all let me back up a little she is now on salary, her hours are 8:30 to 4:30. She claims that there are many times she is here at 8:00, but we are not here to varify that. Although occasionally my husband or myself do come in early & she has not been here at 8, but ok, anyway in a conversation with Alice's across the hall friend, & mind you right in front of me she went on & on about how she likes coming in early when she is by herself, & that is her time to have coffee, breakfast, watch tv, answer her e mails, etc. She made it very clear that when my husband or myself come in early that she has to start work right away & it messes up her morning. Besides the fact that she only works an 8 hour day, we do not make her take a lunch, & she leaves for about 40 minutes each day every other week to pick her daughter up & has made no effort to make up the time, (except for coming in at 8, so she says. When we agreed to put her on salary we did tell her that it was something we are going to do on a trial basis,when she turns in her time sheet she puts in 8 hours for everyday, instead of putting in the real hours she has worked.
I have had it with her!! But I need to hold on for a couple weeks, & maybe just keep documenting everything, which has turned out to be a full time job lately. I know we did this to ourselves, but now it is time to get out of the mess we have created. Is there anything leagally we should be worried about? I know she is the type of person to keep a journal, & I wouldn't doubt if she is working on a law suite if we fire her. But I have been keeping documents of everything also. Help??

bbarrett · July 2003

It's time for the heart to heart and lay down the law. Have the hours been communicated to her? Tell her these are the hours we need you here bottom line. Her hours are 830-430, have her stick to them.

Not sure what you have been dicumenting but the conversation you have with her next again lay the law down and set the expecation of her the document.

Good Luck

lnelson · July 2003

I would not have a secretary on salary for one. Put her back to hourly and have her keep track of her time by timeclock or what everyone else is using. I understand she has been treated different than other employees since she is the only one in the office with you but, if you have policies in place and she is breaking those policies start the disciplinary process. Document, Document & Document. Talk to her regarding her hours and that she must follow the procedures you and your husband put in place. She is your ee you need to inform her what you expect and want from her not the other way around.

I have been in a similar situation. Good Luck

Bizee1 · July 2003

[font size="1" color="#FF0000"]LAST EDITED ON 07-08-03 AT 05:16PM (CST)[/font][p]What kind of lawsuit?? Look at it this way, what exactly would be the reason for termination? (Sorry, I didn't read your other posts on this) Is it because she spends company time chatting away to the man across the hall (who you stated comes over to HER desk and makes himself at home), or is it that she leaves for 40 minutes every day every couple of weeks and doesn't count that time as lunch or whatever. What have you written her up for, what does the paper trail say, and how many times has she been counseled?

Shawn · July 2003

Stop letting her come in early. It is obviously not much of a help if you can't even verify that she has produced any more work for you. It is also the source of some of the problem.........I'm flexing my schedule because I was here working while you were out of the office.

Parabeagle · July 2003

Time to go. Her, not you. Yes, you did do this to yourself but now is not the time for self-beating over the matter. Continue documenting your conversations, especially those in which you lay down the law to her and reiterate her hours, etc. and make sure she understands. I would actually produce a copy of her job description (does she have one?), set forth the hours, duties, etc. and make her sign an acknowledgement that she has received a copy and understands it is her responsibility to read, understand and comply with the rules set forth by you. Then when she steps out of line, broom her.

Rockie · July 2003

Most definitely put her back on hourly, not salaried. If she is the type of keep a journal, the first thing she will do is state that you put her on salary to avoid paying her overtime. I am sure she will have all the "early" hours she claims to be working and the fact that she does not take a lunch documented in this journal. Never mind what she does when she comes in to work for the first half hour - the DOL could care less. You, as an employer, have no leg to stand on in this case as you have no way to verify what hours she actually works. The DOL tends to take the employee's word for this, especially if they have kept a journal. Another problem with the DOL is that you have misclassified this person as a salaried individual when, in fact, she should be classifled as hourly.

Once she starts punching the clock, you will have a clear trail of documentation as to what hours she works. Get ready to hear her scream when you make her start punching a clock!

scottorr · July 2003

I agree with Rockie. It sounds like she should not be classified as exempt. Lately I have read case after case that the DOL has sided with the ee on thses matters. Put her back to hourly. Be careful about letting her not take lunch. We had a DOL audit about a year ago. Our ees normally worked 8:00am to 5:00pm with an hour for lunch. We were letting ees skip lunch and leave at 4:00pm. DOL said no way. They said that lunch periods have to be taken between 11:00am and 2:00pm and that they must be documented. Ees work different shifts fell into a different lunch break time frame.

pmrPA · July 2003

I, also, would be interested in any source citing concerning the DOL ruling on lunch hours. It would be of great help.

Shadowfax · July 2003

These posters are correct:assuming she is an employee at will, not disabled and not over 40, the biggest potential problem you have is the salary issue. Get her on hourly and a time record of some sort. Guranteed she has time records - and since you do not, hers win even if mostly made up. Every day she remains on salary is another day of potential liability (time and a half for her "alledged o/t, doubled for liquidated damages, plus actual attorney fees). You can't correct now for whatever time she was on salary, but you must end it at once.

LeeR · July 2003

I agree with everyone else. Put her back on the clock. Lay down the law over job duties. Make her take a lunch break. And friend from across the hall needs to spend chat time on their time not yours.

mamhradm · July 2003

Excuse me, jajwanda, but I have a question for scottorr.

Did the DOL give you a source citing where it states an employee on an 8-5 schedule must take a lunch between 11:00 and 2:00? Was it specific to your state or federal?

POPEYE · July 2003

I too Scottorr would like to know if they gave you a specific reg#. Unless this is something special for your great Empire State, I don't believe you even have to give a lunch break let alone dictate when it is taken. I know of numerous manufacturing facilities that operate with three 8 hour shifts and only give 2-15 minute PAID breaks during the shift. Also, given business demands, I have know of companies that have EEs take their lunch at the beginning or end of the shift.

ray a · July 2003

Since Scott hasn't replied yet, I'll speak for him as a fellow NY'er - hopefully he won't mind. The lunch requirement Scott referred to is a NY state law. Depending on the type of industry, NY labor law requires either a half hour or full hour lunch break to be taken after 6 hours of work. Factory workers are required to receive an hour lunch but it can be waived to a half hour as long as none of the employees object.

Each state is free to determine employee rest periods. Some require specified times and duration, others have no requirements.

scottorr · July 2003

The NYDOL reg on lunch breaks is Section 162. Sorry for the delay, I have been working on a new no smoking policy and haven't checked back since this morning.

System · July 2003

I would do the following:

1. In a written format, tell her you are taking her off salaried status and back on hourly, get a timeclock she has to punch, give her 30days to shape up or get out!

2. Document like crazy

3. Talk to an attorney just in case but If you are in an Employment-at-will state and you have not given her a GLOWING Written review, you should be just fine either way.

PEOPLE LIKE THAT MAKE ME SICK BECAUSE THEY ARE LAZY, SPOILED AND THERE ARE 20+ OTHER PEOPLE THAT WOULD LOVE TO HAVE HER JOB AND BE GRATEFUL! Maybe remind her of that too???

I am disgusted sheis taking advantage of you and your husband!

sonny · July 2003

[font size="1" color="#FF0000"]LAST EDITED ON 07-09-03 AT 09:51AM (CST)[/font][p]It's all been well covered and I agree with what has been said, would only add that in addition to you documenting her actions, put out a written document to her...'Effective immediately, our expectations are as follows:" List them and give them to her, then she can't say, "But they never told me." Am also waiting to hear back from Scott on the DOL auditor. .they are an interesting lot, as we have discussed, but wonder what this one was smoking. . unless I am totally confused.

Opps, pretty much said the same thing as para already did. Sorry.

Would also add to suggest to the "gentleman across the hall" that if he is in need of more work to decrease his down time you would be happy to find him some.

ray a · July 2003

Section 162 of NY State labor law refers to meal periods with all the requirements. You can access the condensed version by going to the New York State website clicking on "Business in NY" then on "Labor Standards".

System · July 2003

jajwanda,

Salaried and exempt are not the same thing. She will still be entitled to overtime as a "salaried, non-exempt" employee if she works more than 40 hours per week. The problem is, you can't establish that she doesn't work more than 40 hours. Even if she says she comes in early and doesn't take a lunch, the DOL will make you pay her because you allowed it.

Definitely put her back on hourly and set her hours - in a written (and signed) job description.

Keep us up on the saga.

"Sam"

Bizee1 · July 2003

Whoa...no need to get an attorney involved at this point. You are an at-will employer and can term her for any reason that is not discriminatory. If the employer/employee relationship is not working out, it's not working out. She would probably file for UC, but you can always appeal it if she is awarded benefits. She would probably argue that because the company moved it caused her undue hardship (day care etc.) in travel time, so just be prepared for a response to that. However, nothing you have mentioned leads me to think an attorney needs to be involved at this point. Put her back on the clock and make sure she understands what your expectations are of her. If she can't work the hours you need her there, time to move on to another willing candidate.

ray a · July 2003

She may or may not qualify for UC depending on how liberal the unemployment office is in your area. Five years ago we consolidated 2 facilities into one 25 to 35 miles away. Some people refused to go so they quit instead. Only one person was awarded UC because of undue hardship from the move. She happened to live across the border in PA, the rest were all NY employees. Funny thing some of those who were denied UC lived further away from the new facility than she did.

If you do what everyone else suggested, particularly document problems, you stand a much better chance of coming out ahead.

scottorr · July 2003

Thanks Ray!

jajwanda · July 2003

Thanks for your response, everyone has been great, & I have to say it is overwhelming to have so many responses.
But you are right about the 20+ people, we have had so many offers & women who are just waiting for us to get rid of her. We really do try to be the kind of employers we wish we could have had. But it most certainly can not be at the business expense.
Ok, I have to go over all the responses again & make my plan of attack.
Thanks again, & I will keep you posted.
jajwanda

Shadowfax · July 2003

Since you are in Mi (as am I) there is no requirement for the lunch break, but if she says she works 8 to 4:30 w/no lunch then you are on the hook for potentially 2 1/2 hours o/t per wk @ time and 1/2. You can insist she take an unpaid lunch of at least 30 minutes - but need to be sure she is doing it. Any time an employer permits the employee to work, they are on the clock.

jajwanda · July 2003

Thank you for responding, the problem is she doesn't want to work the extra 1/2 hour therefore does take a lunch, that we usually buy for her, & we eat at our desks, she is not working during that time unless the phone rings then she takes the call. This is the way she wanted it to avoid having to stay until 5 everyday.

sonny · July 2003

[font size="1" color="#FF0000"]LAST EDITED ON 07-09-03 AT 02:42PM (CST)[/font][p]If you make her hourly (which she should be) you would need to pay her for the lunch at the desk if she answers the phone.

PS Quit buying her lunch

scottorr · July 2003

Anyone wanting to know meal break laws in their state go to:

[url]http://www.dol.gov/esa/programs/whd/state/meal.htm[/url]

pmrPA · July 2003

Thank you for the website info. Your reply to the original posting generated quite a buzz in itself. I appreciate your reply to our inquiry. I'm in PA so we have no standard (YET). It was interesting to see how many states did, though. Your state seems the most restrictive.

HR in CA · July 2003

Can I add just one more response? Moving her back to a non-exempt employee should be the first move; setting down your expectations of her in writing should be second; the third, document in writing what her hours are, in this same document demand a written accounting of all overtime hours she has worked since becoming exempt or she failed to report while being non-exempt and pay her. Give her 48 hours to provide you this accounting, if she fails to provide it, ask for it again in a written document again. This time state that if she does not give you this accounting within the 48 hours allowed, this will be considered an act of insubordination and she will be terminated. The misclassification she was in and the unpaid overtime would be the only issues she could take you to court on, and would most likely win.

You have been a wonderful employer who has clearly been taken advantage of by a spoiled and undeserving employee. I hope you will consider your next secretary carefully and treat him/her almost as good as you have treated this one. I bet you will find an employee who is thrilled to work for such a giving company. Don't let this bad seed, turn you into a sour grape.

jajwanda · July 2003

Thank you for your response I do appreciate all the info I have received!
We will stay the same, no matter who else comes to work for us, I honestly believe that most people will enjoy our work enviroment, & I will not let 1 bad apple spoil it for anyone else, or for us. We enjoy be good, caring & generous employees but we will not be taken advantage of in this way. We will be very carefull not to let this happen again. Once again the old saying stands "live & learn".
We are new at this & we just don't want it to be a costly mistake. We are a smal company that feels we are fortunate to be making it in this econmy & were also feeling pretty good that we can employ people & give benifits and to just be making it these days.

Thanks again for all the responses from everyone!!
Joann

Parabeagle · July 2003

So do you get the feeling you have a 26 person HR department in your company with all this advice being thrown your way? x;-)

My SPOILED Employee!!

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