exempt employee cant work OT

LeslieC · May 2005

I have an exempt employee (been with us over a year )who's job responsibilites require that he work over 8 hours a day. He has just handed me a doctor's note that he is not to work more than 8 hours/day. Are we stuck? What if anything can we do? We are not in a position to hire another person to take up the slack, and no one else in his dept has the time to take on more work. Any advice much appreciated.
thank you !!

Don D · May 2005

My first reaction is that I would give him FMLA paperwork and tell him it's required that he return them, completed. If he has a medical condition that will or suggests he utility and availability might be compromised, this might surface what's going on. I would also ask him if he would have a problem working different hours or Saturdays. If he's trying to back you into a corner, back him into one of his own.

As you've heard many times, a paying patient can get a note from a doctor with most anything on it.

LeslieC · May 2005

Don,
I like the FMLA idea,but not sure how to go about it. If he is working an 8 hour day, what amount of 'intermittent' leave do I assign to him? Can I just calculate that it would take 9 or 10 work hours a day to finish his work,and 'charge' him an hour or 2 a day of FMLA?
thanks for the help here, I appreciate it.
~Leslie

pork1 · May 2005

LESLIEC: Have you thought about having him to take only a 30 minute lunch break? JUST GIVE HIM THE PERFORMANCE STANDARD AND LET HIM FIGURE OUT HOW HE WILL COMPLY WITH THE PRODUCTION REQUIRED. If he can get it all done in 5 eight hour work days then fine. If he can't then he has no choice but to work 6 or 7 days a week to get in 40+ hours a week and the production necessary to keep the position.

My second thought is: Is he properly classified as an exempt???? Next thought is "redesignate him" as a non-exempt and pay him by the hour for the work that he is producing.

As an EXEMPT myself, I find it hard to comprehend what he is doing as a thinker and a decision maker that would cause him to need to hold his things he does to an 8 hour day to reduce the stress or whatever medical condition, he might have.

Either produce the work in a 7 hour day over 7 days a week or find a more comfortable place to work. That way he gets to work an hour less than the maximum but it is every day.

This man is a disgrace to the professionals that work hours with out concern for the time in a day or week for the company. He must beleive he has a JOB verses being a professional.

Like, Don wrote, give him the FMLA forms, there may be something seriously wrong other than his head!

PORK

LeslieC · May 2005

thanks, I will follow up with the FMLA and definitely suggest he work fewer hours but more days. I think he'll end up giving me a doctor's note that says he cant work more than 5 days also, because he told me that his doctor "told him" that when he worked 12 days straight last week, it 'exacerbated" his condition. The guy is an ACCOUNTANT for crying out loud. His condition is a nerve issue in his shoulder. Apparently sitting at the computer 'exacerbates' the condition. He is having surgery next month . I guess until the surgery I can place him on intermittent FMLA?
your thoughts?
thanks guys, I can always count on you all to have good suggestions.
~Leslie

HRPager · May 2005

I agree with above, make him work 6 or 7 7 hour days to get his work load done.

mbeam · May 2005

I agree that salaried is typically more 50 - 60 hours a week but would be concerned about tying this in to FMLA as 8 hours a day - 40 hours a week would be considered full time.

How would you calculate FMLA hours for him if he is working the full 40 hours a week? What you don't want to do is find yourself in a position of owing back OT by making a salaried position into an hourly one.

Would go with the suggestions on working weekends until he has his surgery since it sounds like the work he is expected to do is not getting done.

lynn2008 · May 2005

From earlier comments, they seem to know the hours normally required to get the job done, so it is allowable to charge the excess hours to his FMLA eligibility.

It could be worthwhile to talk to the employee, and with his permission, communicate with his doctor to determine if there is any changes besides less work, that could allow him to work his regular schedule. Employees do not always accurately portray to their physician what their job duties are currently, and doctors do not usualy ask or know.

Be prepared now for the post-surgery period, as you can expect more restrictions until he has reached maximum medical improvement. If he is unable to work his full job at that time, you may be facing the issue of terminating his employment if he can not do the full job. Always address the concurrent ADA issues, of course.

MS HR · May 2005

please remember the employer does NOT HAVE TO claim the exemption. Make him non-exempt and pay for hours worked only.

simple, easy.

LeslieC · May 2005

yes, we can do this (make him non-exempt), but it doesnt solve the problem, which is his work isnt getting done. We NEED him working 50 hours/week or so..he is in a small dept., he is our only staff accountant, work is not getting finished. very frustrating.
thanks all, we are going to ask him to work 6 or 7 days at 7-8 hours/day and see what happens.
(my guess is he'll bring in a DR's note that says he cant.. then not sure what to do).
~Leslie

jmcaa · May 2005

One thing you also might want to consider, is that when he was hired his salary was probably based on him working so many hours over and above the regular 40 hours. Maybe if he can no longer work the required overtime, you could lower his salary. Maybe a pay cut would be just the thing to change his mind about how many hours he can work.

MS HR · May 2005

We NEED him working 50 hours/week or so..he is in a small dept., he is >our only staff accountant, work is not getting >finished. very frustrating.
>

what about giving him an assistant as a para-accountant.

eventhough exempt, most employees hope to 40 hours per week usually, not 50+ week after week.

LeslieC · May 2005

hiring an assistant is definitely not an option. WHen he was hired it was made clear this is not a 9-5 job. It is not all year round that we have this much work, but right now we do. Everyone else in the dept stays after 5 (and/or comes in early) and gets their work done. I just need to find a way to get him to carry his load (or to get him to accept that this isnt the job for him)..

HRLASS · May 2005

No one has mentioned the ADA here. If working overtime is an essential function of the job, and is listed in the job description, and the employee can't do it, they cannot perform the essential functions of the job. Does the employee's illness/injury qualify as a disability under the ADA? If the employee is ADA disabled, they still must perform the essential functions of the job, however, now you must address reasonable accommodation. Reasonable accommodation can include a shortened schedule for a specific period of time, or even leave beyond that offered under the FMLA if the additional period is defined and reasonable. Also, permanent or temporary reassignment. Talk to the employee and talk to your attorney.

exempt employee cant work OT

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