Need Help FAST!!!!!
TLCTX
43 Posts
I have an employee that was about to be terminated, but then quit. We have no documentation about the termination or the fact that he quit.
He was a non-exempt salaried foreman, and because he quit on a Wednesday the owner of the company wants to dock his pay for the two days he didn't work.
We haven't docked any other foreman's pay if they termed and didn't work the full week. (only other foreman to term without working the full week had about 30 hours the week he was termed, but still paid full pay).
Can we legally dock his pay? I have to have good solid answers very soon.
Thanks!
Comments
One quick question...do you use the fluctuating workweek method for the non-exempt salaried employees? If so, that can limit the docking that is available and "the employer pays the salary even though the workweek is one in which a full schedule of hours is not worked" from http://www.dol.gov/dol/allcfr/esa/title_29/Part_778/29CFR778.114.htm I don't see anything in the regulations or one good explanatory article about FWW (http://www.payroll-taxes.com/articles/fluctuatingWorkweeks.html) that allows for the first/last weeks of employment to be paid as partials. This is allowed in truly exempt employees, but it is something the employer gives up to use FWW (which is generally to the employer's advantage).
If he is truly non-exempt and you pay him 1 1/2 times regular rate for overtime (hours over 40 in one week) and you dock his pay for unpaid time off, you can pay him for the actual hours worked rather than for the full week.
I posted a message, but I am not sure how long it will take to get through since I put some direct links in it.... Do you use a fluctuating workweek method of paying non-exempt salaried employees? DOL : 29CFR778.114? If you do, there is nothing in the regulations or in my notes that states you can dock for first and last weeks. One thing the employer gives up by using FWW is the right to dock on weeks where a full schedule is not worked. In return, the employee gets to pay lower overtime costs.
If you pay salaried but still pay 1 1/2 times wages for overtime over 40 hours per week, then I suspect you aren't using FWW and you would not have to pay for hours not worked.
A foreman gets hired on. The owner decides that his hourly rate would have been $16/hr. So, then he calculates $16/hr * 55 hours a week (he bases their pay on 50 hours a week with the overtime included), and that amount ($16 x 55 = $880) becomes his salary. We pay that amount regardless of the hours they work, be it 25 or 52. Does that make sense?
First, document the fact that he quit, in writing, NOW (assuming that you want a quit rather than a termination). Have the person(s) that he made any statement to re: quitting sign a statement about what he said.
For the pay issue, under Texas law employees who are discharged must be paid in full not later than the sixth day after the date of discharge. Employees who quit must be paid in full not later than the next regularly scheduled payday, so you may have more time than you think.
Wages are compensation owed by an employer for labor or services rendered by an employee, determined by time, job, piecework, commission, or any other method. (TX Labor Code Sec. 61.001). Therefore, you are most likely within your rights to dock pay for hours not worked for a non-exempt (hourly) employee. However, since you have an issue of unequal treatment, I would give full consideration as to why one foreman would be given pay for hours not worked and one would not. What is the difference between these two employees? Does one belong to a protected class (race, sex, national origin, etc.)? If so -- tread carefully. Even if not, you should treat employees the same way, so start now. Establish a policy and stick with it.
What if he works 60 hours? How are those extra 5 hours paid? (please tell me that they are paid) Does he take the $880 and divide by 60 and then multiply by 1/2?
eta: my original message with links just showed up under your original posting....I would read through both of those to confirm whether or not FWW is being done correctly.
I also worry that if we weaken and pay the guy as the superintendent requests, and dock the pay, the superintendents will never realize that documentation during these terminations is important.
As far as the 60 hrs paid question, that's a whole other topic.
I have a really really good FLSA consultant who lives in Austin who is a retired DOL employee. If you want his information, just email me at resumehr2007@gmail.com and I will forward his information to you. He is well worth the $s...especially when going into something as complicated at FWW.
I don't know if I gave my personal opinion, but I would pay out the whole week based on the information you provided....that the employee expects the FWW and probably knows that they should get the whole week. But if your owner won't do that, I would just document that since he was non-exempt you paid partial week and hope it doesn't come back and bite.
eta: I agree that documentation is important...not just for payroll purposes but also to fight Unemployment and EEOC claims. Slowly I have trained all my managers to document! And I was happy I did when I "won" my one and only EEOC complaint