ADA

Thursday, June 19, 2008 9:18 PM

Name: Cynthia
 
Question: A supervisor informs HR that a hearing impaired employee has reached the maximum level of attendance points allowed. The supervisor is recommending termination. How do you handle it? Thank you.

Response:

Cynthia,

You do not state that the employee has received any type of corrective action at this point.  To summarily terminate any employee – whether the employee is disabled or not is not fair to the individual as they were never given an opportunity to correct their behavior. If you are using a point system, there should still be some type of progressive discipline in which an employee is notified of that they are reaching what would be considered an unsatisfactory attendance record.  Additionally, depending upon the State you are in, you will have a better chance of winning an unemployment hearing if you have a record of progressive discipline for the attendance problems. 

I am assuming you are asking this because of the fact that the employee has a disability. The Americans with Disability Act requires that an employer make reasonable accommodations for a person with a disability so they can meet the expectations of the job.  It does not require an employer to lessen the performance and attendance standards for a person with a disability. 

With that being said, however, there are a few questions I have.  Is this individual required to go to a doctor for his/her condition on a regular basis?  If so, do these doctor’s visits affect his/her attendance and add to the number of points the individual receives under your attendance recordkeeping system?  If your answer to each of these questions is yes, then you may want to reconsider termination as allowing the employee to have an additional couple of days to attend to medical responsibilities could be considered a reasonable accommodation? 

When making these types of decisions, try to put yourself in the position of a member of a jury in a discrimination lawsuit.  If the employee never received a disciplinary notice and is held to the same standards as non-disabled employees, would you as a member of a jury decide in favor of the disabled employee or the employer? 

You did not give me a lot of facts to go on here so I am doing a lot of speculating.  So if you could supply me with a few more facts, I am sure we can help you. Do not hesitate to contact me with additional information or if we can be of additional help to you.

Kind regards,

Bob McKenzie

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COMPENSATION

QUESTION FROM:  SHARON
INDUSTRY:  HEALTHCARE

Hi, Bob.  We've spoken a couple of times.   Your newsletter came while I was doing research...for suggestions for a competitive way to offer incentives for managers who fill in at another location until an opening is filled.  Basically, doing 2 jobs at one time...their own and the one of the vacant position.  Currently we think we'd pay (in addition to salary) a daily rate at the 2nd location, based on the annual salary of the open position divided by 2080 x 8 hours.  Thoughts?  Please and thank you.

RESPONSE:

Sharon,

I am making an assumption that these are professional or management positions and admire your desire to offer an incentive for this situation.  However, I think your plan is a bit too rich as I do not believe it is necessary to pay the entire amount of the salary of the vacant position.  It is always more difficult to do two jobs, but if there is a need for both positions in your organization, then it would be impossible for one person to perform all that is required of both jobs.  In the case you describe, the best you can expect is for someone to oversee the most vital tasks of both positions and leaving the less important, yet necessary items, undone. 

My recommendation is to look at both positions and jointly set short term goals for both.  Give an up-front incentive such as a temporary 15% or 20% salary increase and then offer a cash bonus upon meeting or exceeding the goals or standards being met while working both jobs. When the replacement is found, then pay a bonus based upon meeting the performance criteria.  This could be a lump sum and the target amount should be agreed to up front.

If these are professional and management positions, it could take in excess of 3 months to find the right person.  This makes for a good opportunity to take your time to ensure that the best person for the position is found. 

Contact me directly if you have any questions or if I can be of additional assistance.

Thanks for asking Bob.

Kind regards

Bob McKenzie, President

From: sharon
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Thanks so much, Bob.  I always appreciate your insights.  Take care, Sharon

QUESTION FROM:  MARLA
INDUSTRY:  HEALTHCARE

What are the pros and cons with Merit Pay.  and what are the alternatives?  Do most companies in Jacksonville use merit pay or another form of reward?

RESPONSE:

Marla,

I hope all is well.

I love these kinds of questions because there is no easy answer. 

I am a firm believer in merit pay systems.  However, to be effective, they must be implemented properly with a large enough deference in either percentage or dollar volume raises between the higher achievers in your organization and the mediocre performers.  With smaller merit increase budgets, there is a smaller pie to split among all of the employees.

There are a couple of ways to implement a merit pay plan. 

One is to equate certain scores on a performance appraisal to a corresponding salary increase.  For example, if the performance appraisal is on a 1 through 5 scale with 1 being unacceptable performance, 2 being needs improvement, 3 is meets standard, 4 exceeds standards and 5 being walks on water, your distribution of increases may look something like this (assuming a 4% merit increase budget):

• Overall score of 1 or 2 - no increase.
• Overall score of 3 - 2% increase.
• Overall score of 4 - 4.5% increase.
• Overall score of 5 - 6.5% increase. 

A second way is to be a little more sophisticated with the distribution of increases depending on the employee's performance AND position in the salary range. Assuming that the midpoint of the range is the rate at which an employee performing the job is fully functional, any payment beyond the midpoint should be slowed down a bit.  Using the above performance appraisal distribution, two employees scoring a 4 with one paid below the midpoint and the other above the midpoint would get different percentage increases.  The one above the midpoint may get a 3% increase whereas the person below the midpoint may get a 5% increase.  Another way to look at this is the dollar amount of the increase.  Even though the percentages are different, both may get a $1,000 per year increase.
 
Another way is to tell the department manager that she/he has “x” dollars to split among her/his employees - but must justify each with a corresponding performance appraisal. 

Merit pay systems reward higher performers and, therefore, are good for the organization.

The downside of merit pay systems include the difficulty many managers have in quantifying performance standards, giving realistic reviews, differences in managers’ definitions of performance factors, and one manager being a tough reviewer and another being a softie. 

To be effective, the standards of performance for each position and each performance factor should be defined prior to the review period. 

Other pay plans include across the board or cost of living increases (a big YUCK as far as I am concerned).

You can also have step systems in which an employee gets a specified raise either over a specific period of time or by accomplishing certain objectives.

There are skilled-based pay systems and knowledge-based systems that pay people differently depending on what skills or knowledge the employee brings to the organization. 

As for what employers in Jacksonville do, I would venture to guess that most say they have a merit system, but as to how well they are implemented and delivered to the employees is another story.

Thanks for the questions and I apologize for such a long-winded answer.

You know where to find me if you need help with this.

Kind regards,

Bob McKenzie SPHR, President

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DRUG TESTING

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QUESTION FROM:  MARILEE
INDUSTRY:  ENVIRONMENTAL ENGINEERING

Is there any law that requires us to offer Employee Assistance/Treatment for a positive drug result?  I am working on a update to our handbook, and we would like to state "No Tolerance" period.

RESPONSE:

Marilee,

The only law that you may have to be concerned about has to do with anyone who drives a large truck – over 25,000 lbs.  If this is the case, then you have to give them some information on an EAP or substance abuse program.  However, you are still able to terminate – but still must give them info on a program.   This can be as simple as ripping out the page in the yellow pages on substance abuse facilities. 

So the answer to your question is that you can implement a drug free workplace program with a zero tolerance for any positive testing.  If you want to be in compliance with the Florida Drug Free Workplace Act, you must give your employees 60 days advanced notice of your intention on changing the policy.

Let me know if this answers your question or if we can be of further assistance.

Kind regards,
 
Bob McKenzie, President

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EMPLOYMENT AT WILL

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QUESTION FROM:  BRIAN, CSO (CHIEF SACKING OFFICER)
INDUSTRY:  PRINTING

Can I can somebody whenever and for whatever I want?

RESPONSE:

Dear CSO:

Your question cannot be answered by saying “yes” or “no” because the answer is “yes” AND “no.” The employment at will doctrine states that the employment relationship is for no specific period of time and can be ended by either party at any time, for any reason or for no reason. HOWEVER (AND IT IS A BIG HOWEVER), the concept of "employment at will" has been watered down to the point that it has little meaning anymore.  For example, an employer violates public policy when terminating an employee who is serving on jury duty or serves as a witness in court.

Discrimination laws, whistleblowing laws, retaliation for filing a workers’ compensation claim, the Family and Medical Leave Act and other employment related legislation have made the concept virtually useless. There have been a few occasions in which we have utilized the concept to "can" people, but only after reviewing all of the potential risks. 

All of this legislation has also increased employee awareness of their so-called rights.  Our experience indicates that when employees are terminated for no cause or feel that the employer's treatment of them is unfair, they will want to retaliate.  We are working on three EEOC charges of discrimination now that have no merit - but were filed by the terminated employee as a way to get back at the company for firing them. Therefore, we recommend that employers stop thinking about employment at will in their dealings with employees and treat them with fairness, consistency, respect and dignity.  Keep the employment at will statements on your applications, offer letters and handbook, because you may have to revert to it from time to time.  But use it very rarely.

Sorry for the long answer.  Here's a link to a great article about employment at will.

http://www.mckenziehr.com/enews/august2004.htm

Let me know if you need additional information.

Regards,

Bob McKenzie, President

From: Brian
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Man, "Ask Bob" really works!

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EMPLOYEE RELATIONS

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QUESTION FROM:  DIANE
INDUSTRY:  NON-PROFIT

A new employee has just joined our company this week. The two other people in the three- person department where he is working are taking offense to the "cigarette odor".  They are non-smokers and, evidently, he does smoke. The supervisor wants to give him the option of not having a cigarette odor or being let go.  What kind of trouble could we be in if he is let go under these circumstances? Thank you.

RESPONSE:

Diane,

You should not have any issue if the employee smells of cigarettes and he is terminated for this.  Here's another option, though.  Instruct the smoker to wash his hands after he smokes.  Most of the smoke odor collects on the fingers and hands of the smoker.  This will not totally eliminate the smell, but should reduce it considerably. 

See how this goes.  If he has a problem with this alternative, he is obviously one of those rude smokers that we all hate. 

Approach him with this option and see how it works.  If there are still complaints after he does this, let's cross that bridge when we get to it.

Good luck

Bob McKenzie, President

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FMLA

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QUESTION FROM:  DIANE
INDUSTRY:   COMMUNITY BASED NON-PROFIT

We have a person on FMLA who has almost enough time to cover the complete 12 weeks.  While he has been out the payroll department has him accruing sick/vacation time.  In the FMLA policy as I read it, it states, "Although benefits will not accrue during any leave, benefits accrued before leave will not be affected except that the Company may require that any accrued paid vacation, paid sick leave, etc.... “  From what I read is it correct to say that a person on FMLA (even though they have a large sick/vacation balance) and using sick/vacation time should not accrue sick/vacation while on FMLA?  Thanks for your answer.

RESPONSE:

Diane,

This is sometimes a very confusing thing to understand because FMLA is an unpaid period of time.  I always like to say there are three buckets:

            1) FMLA;
            2) Vacation; and
            3) Sick or other paid time off benefits.

The FMLA is always unpaid.  However, you, as the company, can require employees to use sick and vacation time while on FMLA and your policy should state this.  The paid time used by the employee on FMLA still falls under your regular sick and vacation policy.

If you normally allow employees to accrue time off benefits while on vacation, then they should accrue the same amount of time off while on FMLA.  If the employee you are questioning had 12 weeks of leave available and you continue to accrue time for an employee on two weeks of vacation to go skiing in the Alps, then you must also accrue time when an employee is on FMLA.  (I am making the assumption that you do not stop the time off accrual when someone is out sick for a week or on vacation.)

If this is the case, then the only time that vacation or sick time accrual should not be given to the employee is after the vacation and sick time is exhausted while on FMLA.

Have a great rest of your week.

Kind regards,

Bob McKenzie, President

QUESTION FROM:  BONNIE
INDUSTRY:  RESIDENTIAL BUILDERS

I have an employee who has been out on worker's compensation since 6/16/05 due to an OJT accident.  She was released to part-time duty 9/23/05 and is still only working 1/2 days.  She has exhausted her FMLA leave.  How long must we keep her on w/c status as a pt worker when her position requires full-time capability.  Her position is that of sales trainer and we are now reaching critical mass in our training requirements as well as needing to hire additional staff to handle our training requirements.  Please advise.  Thank you.

RESPONSE:

Bonnie,

You are under no obligation to return this person to the same job if she was released to return to work on a part-time basis.  Even with FMLA, if the individual is on a reduced schedule leave, you have the option of transferring her to another position during the period of time she is on the reduced schedule.

Look within your workplace to see if there is another job she can do that is not as critical as the one she holds now and transfer her to that job.  Since she is a sales trainer, can you have her put together the material and schedule the training sessions while having another employee do the training?  Look at re-arranging some of the functions others do to see if there is an opportunity to have her add value while giving the actual training duties to another individual.

If nothing is available in the sales training department, look at another department within your organization where she can do part-time work. 

Under workers’ comp rules, you are also under no obligation to hire her for light or part-time duty if you do not have that type of work available.  The problem with this is if you tell her you only have full-time work available and she cannot work a full-time schedule, she will receive more in the form of workers comp payments, which you will pay for in higher premiums later. 

Now that her FMLA has expired, you do not have to offer her the same position if she is not able to perform the essential functions of the job - being available for a full-time schedule sounds like it is essential to your business. 

Sometimes, you have to be a little more creative in coming up with ways to make these situations work for you.

I hope this helps.  Let me know if I can be of additional help.

Bob McKenzie, President

From: Bonnie
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Thank you so much for your quick response, it is very much appreciated. You've given me some excellent information to enable us to move forward with our planning for the New Year with our training department.

Have a great holiday season and best regards,

QUESTION FROM:  JOHN
INDUSTRY:  MORTGAGE LENDING

In determining exemption from FMLA based upon having under 50 employees,  would we need to include employees that are registered as being licensed employees of our Corporate branch address, but physically work from other locations? 

RESPONSE:

John,

For FMLA purposes, it is the location in which the employee actually works. 

So, in your case, if one of your salespeople is licensed in Palm Coast and works out of an office in Fort Lauderdale, the Fort Lauderdale location is used for determining the 50 employees within a 75 miles. 

Hope this answers the question.

Thanks,
 
Bob McKenzie, President

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I-9 FORMS

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QUESTION FROM:  CHRISTINE
INDUSTRY:  VEGETATION CONTROL

I was told that I should not keep a copy of an employee’s picture ID in his employment folder. Is this true? Also we have a lot of immigrants that work for our second company and I was told to keep their I-9's in a separate file. Should I keep their ID's in that file or their employment file? Thank you!

RESPONSE:

Christine,

Keeping a picture of an employee in a file could be a problem because it clearly shows the race of the individual.  The thought is if a manager is looking through a file to consider a person for a promotion, the decision must be based on criteria other than race. Personally, I think this is ridiculous (because upon interviewing someone, you should be able to determine the race of the individual), but the government agencies and the courts have ruled that such practice could be seen as discriminatory. 

With regard to your I-9 forms, they should be filed in a separate 3-ring binder and filed alphabetically.  Since the Immigration Reform and Control Act does not require you to keep copies of the documents, we recommend that copies of the documents used to determine identity and work authorization NOT be made and NOT be included with the I-9 forms. 

However - and this is a big HOWEVER - BE SURE THE I-9'S ARE FILLED OUT CORRECTLY AND IN THEIR ENTIRETY.  Also if you hire employees with temporary work authorizations, be sure to have a follow-up system to be sure that all work authorizations are current.

I hope this helps.  Let me know if you need additional information or an audit of your I-9 forms.

Thanks for asking Bob. 

Kind regards,

Bob McKenzie, President

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RECORDKEEPING

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QUESTION FROM:   MAGGIE
INDUSTRY:  NON-PROFIT

How long should applications of people you did not interview be retained?  What about for candidates you did interview but not hire?  What about EEO Self Identification forms?

RESPONSE:

Maggie,

If you have any funding coming from the Federal government, you should keep applications and the self identification forms for a year.

If not, you can keep them for as little as three months.  However, with the statute of limitations on the filing of discrimination charges being up to one year, depending upon whether a charge is filed with a state or Federal agency, it is prudent to keep the applications and the self identification forms for a year. 

Thanks for using "Ask Bob".  Let me know if you have any additional questions.

Kind regards,

Bob McKenzie, President

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VACATION PAY UPON TERMINATION

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Wednesday, June 18, 2008 10:30 AM
To: bobm@mckenziehr.com
Subject: Ask Bob
Telephone:  305-555-5555

From: Lou

Question: If an exempt employee is terminated (voluntary or involuntary), is the Employer required to pay out any unused PTO accrual on his/her last check?

RESPONSE:

Lou,

I see that your telephone number area code is 305 which means that you are in South Florida.  If the employee in question is also in Florida, then the answer is no- you do not have to pay out unused PTO.  However, it is also a good idea to have this policy in writing in a handbook or similar document to avoid any confusion on this.

If the employee is in another state, I would have to know which state the employee was employed to determine if it is required to pay out unused PTO.  Some states require that unused Paid Time Off and/or vacation be paid to the employee upon termination.  Other states require such payments unless the company has a specific policy stating that unused PTO/vacation will not be paid upon termination.

I hope this helps.  Let me know if you have additional questions.

Kind regards,

QUESTION FROM:  DIANE
INDUSTRY: NON-PROFIT

If our employee handbook states the employee is to give two weeks notice prior to resignation but instead gives less than the stated notice, do we have to pay them vacation pay in their final paycheck?  Thank you.

RESPONSE:

Diane,

In the state of Florida, you are not required to pay out vacation when someone leaves your company.  However, if your policy is silent on the issue, it would be advisable to pay for the unused vacation. 

Many states have laws that require an employer to pay for unused vacation upon termination unless the company has a policy stating otherwise.  Others require the employer to pay unused vacation regardless of the reason.

Update your handbook in the termination section to state something to the effect of, "It is common industry practice to give two weeks notice of your desire to leave Community Connections.  Failure to give two weeks notice of your intention to leave the company will result in forfeiture of any unused vacation."  You may also want to add that leaving the company without notice is very disruptive to the organization and is an unprofessional practice. 

Be careful not to overstep the "employment at will" doctrine.

Hope this helps and thanks for asking Bob. 

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WAGE AND HOUR

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Sent: Wednesday, April 09, 2008 4:44 PM
To: BobM@mckenziehr.com
Subject: Ask Bob

Name: John
Title: General Manager
 
Question: We have a full-time bartender who is assigned a $200 change bank each shift. Recently, the accounting staff opened the safe on the day following her shift; & there was NO bank bag containing money. When asked, the bartender said that she had left the bank bag in the desk drawer of her immediate manager. A thorough search of the desk did NOT find the bank bag. The missing cash is $236.00. In a case like this, I feel that the loss is the fault of the bartender who did not take adequate steps to secure her monies at the end of her shift. Three managers were still on duty at the time the bartender clocked-out; so the bartender could have given one of them the money bag to lock in the safe. If my memory serves me correctly, we can deduct the amount of the loss ($236.00) in installments from the bartender's paycheck; so long as any one pay period's deductions do not take the bartender below the Florida minimum wage. Do you concur?

Thanks, as always, for your help. John

RESPONSE

Yes.  I concur.  The Florida minimum wage is now $6.79 per hour, but don’t be surprised if the bartender walks out on you when you announce this. 

Kind regards,

Bob McKenzie

QUESTION FROM:  DIANE
INDUSTRY:  NON-PROFIT

Is it correct for exempt employees to take time off work - maybe 2-3-4 hours in a day and not have it charged against their annual balance?  Our company pays for their time off but our CFO just recently said exempt employees are not to have the above-noted time taken off their annual leave balance. 

RESPONSE:

Diane,

If exempt employees take time off during the day, it is allowable to require them to charge that time to their annual leave.  The Fair Labor Standards Act does not care if the time is taken from vacation, sick, personal or a paid time off bank, just as long as they are paid.  To do this, however, you must have a paid time off plan (whether it is a vacation, sick or other plan) that is communicated to employees.

In the case where an exempt employee has used all of his/her time off allotment and works a partial day, the exempt employee must be paid for the entire day.  On the other hand, if the same employee misses an entire day, it is allowable to not pay them for that time missed. 

Just a word of caution - in many cases, exempt employees work over 40 hours in a week and do not get extra compensation for doing so.  Therefore, strictly enforcing a rule whereby an exempt employee must account for all of their time off can create a morale problem. 

Not knowing your work environment, it is hard to come up with a recommendation, but some flexibility to allow an exempt employee to take an hour or two here or there to attend to personal or other matters without charging it to their annual leave should be built in.   Usually, we put a system in place whereby exempt employees must account for 4 hours or more of absence in a day.

I hope this helps.  Call me if I can be of further assistance. 

Kind regards,

Bob McKenzie, President

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USERRA

Sent: Wednesday, November 14, 2007 4:44 PM
To: BobM@mckenziehr.com
Subject: Ask Bob

Name: Melinda
Title: Compensation & Benefits Analyst
Question: We have an employee on Military leave for over 7 years. Can we term her?

Response:

Melinda,

This is a great question as the usual the limit under USERRA is 5 years.  However, there are a number of exceptions to the five year rule and the five years is extended for a number of reasons. 

I guess the other question I have is why would you want to terminate the individual on military leave?  Is it costing you any money to continue to keep the individual on leave?  My suggestion is to cross the bridge on re-hire when the employee is ready to come back to work. 

From: Melinda
Sent: Friday, November 16, 2007 8:39 AM
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Thanks for the information.  The employee on military leave has never left our city and she has had two children since having been placed on leave.  It’s not that we are eager to terminate her, we were just wondering.  Also, is there a rule that they must accrue paid time off and illness paid while on military leave?

RESPONSE:

Melinda,

It sounds like you have a unique circumstance here.  The fact that she had two babies during her military leave raises some questions that I do not have an answer for. Is the time spent on maternity leave from the military counted toward the five years?  I am not sure how to answer this and the only thing I can tell you is to contact the Office of Veteran Affairs in Washington D.C. at 202-693-4700 and explain your circumstances.

As for accruing time, the answer is no you do not have to accrue any paid time off to her unless your policy allows employees on a leave of absence to accrue time off benefits during their leave.

Thanks for the challenging questions.  I appreciate it.

Kind regards,

Bob McKenzie

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DRUG TESTING

Sent: Wednesday, March 12, 2008 8:37 AM
To: BobM@mckenziehr.com
Subject: Ask Bob
Name: Vickie

Question: Recently, I was asked to take a drug test before the job offer was made. My husband was asked to take a drug test and references were checked before a job offer was made from a separate company. I thought there needed to be a contingent job offer first. Am I confused?

Thank you, Vickie

RESPONSE:

The contingent job offer was implemented after ADA came into effect in 1990.  An offer should be made before sending a candidate for a pre-employment physical.  A contingent offer of employment is not required for a drug test that is a part of the screening process.  For some unknown reason, many companies implemented a contingent job offer before sending people for drug tests as a conservative measure to comply with ADA. 

So the short answer is that a contingent job offer is not required for a pre-employment drug test. 

Kind regards,

Bob McKenzie

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EMPLOYEE RELATIONS

From: David
Sent: Tuesday, February 12, 2008 4:56 PM
To: BobM@mckenziehr.com
Subject: Ask Bob

Name: David
Title: Manager
 
Question: Bob, I noticed the question and your response about an employee who smells of smoke. My question is similar. We have an employee who our managing director constantly complains about. He complains that the employee has Body Odor. I do not smell it and neither do my peers but the managing director does and insists we fire the employee. No one is willing to speak up for fear of their own job. I've spoken with the employee who claims to shower daily and can't imagine why he is being singled out by the boss. If I fire this employee as the managing director insists, will the company be liable - or should I urge my dir. to reconsider. Thanks David
Submit: Submit

RESPONSE:

David,

This is a difficult situation and one that appears that you have attempted to handle correctly by confronting the situation with the employee. 

There are a number of things that you should consider before making a decision to terminate the employee.  First, is that the managing director seems to be the only person who can detect the body odor but it does not seem to be bothering this individual’s co-workers.  Another thing to consider is the national origin of this employee.  If he is from another country, there may be customs or diet that may cause the person to have a distinctive aroma.  These aromas may be offensive to some people, while others are not bothered in the least.  You may be opening your company up for a discrimination charge.  

I like to put myself in the position of the plaintiff’s attorney to see if I could “win” a case against the employer.  It would not look good on the part of your company if you and all of your co-workers were deposed and asked under the penalty of perjury if you smelled body odor from this employee.  If 10 people say they did not smell anything and the only person who did is the managing director, the preponderance of evidence is in the favor of the plaintiff and therefore, the only reason for termination is the protected class status of the employee.    

One more thing is the concept of treating people with fairness and respect.  By confronting him, you have probably already insulted him.  If you fire him, you will add injury to the insult which makes people more inclined to get back at the employer by going to the EEOC or state fair employment agencies.  It sounds like the other employees are already scared and the word about this guy is all over the place.  How will the other employees view this termination?  . 

With all this said, if I were you, I would ask the managing director to reconsider.

Good luck.  Let me now how it turns out.

Bob McKenzie

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EMPLOYMENT

Sent: 10/15/2007 9:28:22 AM
To: BobM@mckenziehr.com
Subject: Ask Bob

Name: Christine
Company: Vegetation Control, Inc.
 
Question: We are hiring for a mechanic and a very qualified candidate came in to fill out the application, the receptionist stated after he left that he smelt like he was drinking, however I did not smell alcohol on him. We called him back a couple of days later for a second interview with the Fleet Manager, and the Fleet Manager said no way you could smell the alcohol all over him and he kept side stepping. We are a drug free work place. My question is can you tell an applicant we did not choose them because we smelled alcohol on him and he was side stepping? We sent him a letter and said we selected another applicant with more qualifications, however that employee decided not to take the offer and now we have to place another ad and what if the drinking candidate calls.??? Any help would be greatly appreciated. Christine

RESPONSE:

From: Bob McKenzie [mailto:bobm@mckenziehr.com]
Sent: Monday, October 15, 2007 9:49 AM
To: Christine
Subject: Re: Ask Bob

Christine,

What you did is exactly the right thing to do.  Even if you are placing another ad in the paper, you do not owe a candidate an explanation as to why the person was not selected.  If this guy asks why the job is being advertised again, continue to say that you are looking for someone who fits your needs and leave it at that. 

Make sure the first interviews are documented.  If you have a doubt about an applicant's ability to do the job, you owe it to yourself and the company to go with your gut feeling.  Sometimes, your gut just tells you "NO".  As long as your decision is based on a job related issue, you are under no obligation to hire or not hire anyone. 

I hope this helps.
Bob McKenzie
From: Christine
Sent: Monday, October 15, 2007 10:14 AM
To: Bob McKenzie
Subject: RE: Ask Bob

Mon 10/15/2007 10:14 AM

Bob,

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PAID TIME OFF

From: Donna
Sent: Thursday, May 31, 2007 11:16 AM
To: BobM@mckenziehr.com
Subject: Ask Bob

Name: Donna
Company: Staffing
Title: HR Rep
Question: Hello Bob, I work for an IT staffing company. Our contractors are W2 employees and are offered benefits, but no PTO time. The length of assignments varies depending upon the project. They are paid on an hourly basis for all hours worked - enabling us to invoice the client based on the total hours worked. I've been asked to check into changing the status of some contractors to salaried, which would make them eligible for PTO time. My first thought is that as a salaried worker, we would not be able to pay/invoice for more than 40 hours per week. Secondly, we would be creating an inequity if some contractors are offered paid time off while others were not. Am I on the right track? What other issues might this cause? Thanks for your help.

RESPONSE:

Donna,

If your people are W-2 employees, they are not contractors.  For the purposes of this response, I will refer to these people as consultants.    

Your dilemma seems to be more of a business decision issue than a fairness issue.  The fact that the consultants are paid by the hour or paid a salary is not material to offering PTO.  This is an internal policy issue that you have to come to grips with.  If the consultants are hired on a temporary basis, then you may not be required to offer PTO to temporary employees.  You may have to create another employee classification to make this work. 

Another issue to think about whenever moving an employee from hourly to salaried status is to be sure the salary offered is at least equal to the pay they employee had as an hourly employee.  One way to do this is to look at the total earnings over the past three to six months and determine a salary based on the total earning and not by the base hourly rate. 

You are permitted to bill clients for hours worked over 40 in a week and still pay a salary to these individuals.  The consultants will still be required to keep track of the time worked for billing purposes.  But, you are right in your assessment that when the consultants are on vacation, you cannot bill the clients.

I hope this helps.  I am in the office all day, so give me a call.  Sometimes it is better to talk your way through an issue.

Thanks for asking Bob.

Kind regards,

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EQUAL EMPLOYMENT OPPORTUNITY

Sent: Monday, June 09, 2008 2:09 PM
To: bobm@mckenziehr.com
Subject: Ask Bob

Name: Sharon
Title: H R Director

Question: Bob, do you have and/or can you direct me to recent stats for employment law litigation $ awards? I want to use this in training, to impress managers with $ that lawsuits could cost them. Please, and thank you.
 
RESPONSE

Sharon,

I just read something on this the other day. Basically, this is what I read.  60% of the plaintiffs prevail and the average award is $400,000.  This does not include the company’s legal fees and time the employees spend involved in responding to requests for information, attending depositions, mediations, pre-trial hearings, etc., etc.

Look at the EEOC web site – One thing I usually do is state that there were 82,757 charges of discrimination (http://www.eeoc.gov/stats/all.html ). Here is the link for the enforcement statistics for the EEOC.  This should help as well. 

With 250 work days a year, this equates to 331 charges every day.  EEOC attorneys will represent a plaintiff in court if they think the case warrants it – therefore the employee or former employee does not even have to pay attorneys fees. 

Good luck.

Bob McKenzie

From: Sharon
Sent: Monday, June 09, 2008 3:06 PM
To: bobm@mckenziehr.com
Subject: Ask Bob
 
Thanks so much.  You’ve provided helpful stats…and I’ll check the site out. As always, you’re responsive and I appreciate your being there. If I ever get a chance to visit my birthplace, Jacksonville, will take you to lunch!

Sharon

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We often get questions from employees who feel as though they have not been treated well by their employers.  Here are some of these questions – in all cases – the employee who asked the question was satisfied with the answer or had the issue resolved internally. 

KEEPING THINGS STRAIGHT WITH EMPLOYEES

From: Patricia
Sent: 8/3/2007 4:28:50 PM
To: BobM@mckenziehr.com
Subject: Ask Bob
 
Question: Hello, I was terminated from my job of almost 3 years as a vet tech. The doctor of the hospital is also the owner. I was fired because of personal reasons between me and him. We did not get along. My termination had nothing to do with my abilities. Am I entitled to my unused vacation pay? Thanks, Trish
Telephone: 727-555-5555

RESPONSE:

From: "Bob McKenzie" <bobm@mckenziehr.com>
Sent 8/4/2007 9:09:37 AM
To: Trish
Subject: Re: Ask Bob
Patricia,
As for being paid for unused vacation, it depends upon the state in which this occurred.  Your area code of 727 indicates you are in Florida.  If the vet you worked for is in Florida, the answer is no - you are not entitled to unused vacation pay. 
Bob McKenzie

Sent: Tuesday, March 11, 2008 10:20 AM
To: BobM@mckenziehr.com
Subject: Ask Bob

Name: Amy
Question: Hey Bob, in the state of PA, if I work Mon thru Fri (7 hours a day), am I entitled to paid vacation time or sick, personal days? Your friend, Amy

RESPONSE

The short answer is no.  A company is not required to offer any employee paid time off.

Your buddy, Bob
(Amy is Bob’s sister)

From: Felicia
Sent: Wednesday, September 13, 2006 7:11 AM
To: BobM@mckenziehr.com
Subject: Ask Bob
 
NAME: Felicia
COMPANY: confidential
TITLE: Account Assistant
QUESTION: My employer is counting vacation time earned towards FMLA time.   My employer is also telling employees that if they take the entire 12 weeks for maternity leave, return to work, but have a doctor's appointment for something unrelated to their FMLA, they can be terminated.  I feel this is a misrepresentation of the FMLA regulations.   I have researched the DOL website, but situations such as this are not "written out."

Please help.
 
PS:  You taught a class at FCCJ that I was in regarding SHRM.  I have been on your mailing list ever since.  I hope this email is okay!
Best Regards,

Felicia

RESPONSE:

Felicia,

To preface my response, you must understand that the FMLA is probably
THE most complicated piece of employment legislation ever passed. 
Most managers of the companies that I run into do not understand it and deem it as a threat to running the business.  Some of the problems associated with FMLA are the high number of employees who have learned to "work the system," thereby causing doubt of the employees' intentions when using FMLA.  With that said, here are some of the facts regarding your question.

It is perfectly OK for the company to require employees to exhaust their sick and vacation time while on FMLA.  The reasoning is that an employee who takes 12 weeks off for FMLA and then has another two or three weeks of vacation and sick time will be off over 15 weeks a year.  This is actually a practice we recommend to our clients.  Just an FYI, I once worked for a company that did not require use of sick and vacation time. Many employees had over five weeks of vacation and 10 days of sick time. By the time they used all of their days off, they missed 17 weeks of work.  Many employees took advantage of this and it caused the company a lot of hardship in operating its business.

As for the taking time off after FMLA, understand that any FMLA leave cannot be counted against the individual as time off.  Therefore, if the company has a policy or practice on what constitutes as excessive absenteeism, the time spent on FMLA should be counted the same as if the employee were at work.  Here's the issue that may occur from your example.  An employee who did not take FMLA goes to a doctor's appointment and nothing is said to the individual.  Then the employee who used FMLA has a doctor's appointment and was given a hard time about it. This could be deemed a violation of FMLA because the FMLA absence is being held against that person.

This could be problematic for the company.  If you are in an HR position, get educated on FMLA and be sure to inform the management of the company's risks of their practice of threatening employees who used FMLA.  After that, the decision is theirs to make. I hope this answers your question.  Let me know if I can help in any way.

Kind regards,
 
Bob McKenzie

From: Felicia
Sent: Thursday, September 14, 2006 6:50 AM
To: bobm@mckenziehr.com
Subject: Re: RE: Ask Bob

Thanks Bob...it makes sense why my company does this now...there is still a gray area on how they do things but I believe I understand that they are following the policy.  This is a really complicated issue to follow!

I appreciate you getting back to me....have a great day!

Felicia

From: Roger
Sent: Wednesday, February 07, 2007 11:05 AM
To: BobM@mckenziehr.com
Subject: Ask Bob

NAME: Roger
TITLE: Computer Tech

QUESTION: Bob, I have a friend who is a LPN and works for a home health care agency.  She routinely works more than 40 hours per week.  She asked why she is not getting overtime and the reply was that since Medicaid does not pay overtime then the company doesn't.  She has spoken to two other employees who are RN's and they said that they receive overtime pay.  Is the company breaking the law?

RESPONSE:

From: Bob McKenzie [mailto:bobm@mckenziehr.com]
Sent: Wednesday, February 07, 2007 12:03 PM
To: Roger
Subject: RE: Ask Bob

Roger,

You put me in a rather awkward position as we work with the employers to help them with these types of issues and not the employees in dealing with employers.  I also have to say that I am not an attorney and cannot give legal advice.  But I will give you a typical lawyer response. The answer is it depends upon what your friend is doing for her clients as a caregiver.  Under normal circumstance, an LPN is non-exempt which means that employers are required to pay overtime for time worked over 40 in a workweek.

On the other hand, in 1974, the FLSA created the companionship services exemption, excluding from the FLSA's minimum wage and overtime requirements for domestic service employees who provide companionship services to the elderly in their homes. The creation of a companionship services exemption was supported by important public policy considerations. Caregivers who are exempt from the FLSA can provide lower cost services, and thus, the companionship services exemption enables more elderly and disabled people to receive needed services that might otherwise be unaffordable. For some of these individuals, the only alternative to home care and the receipt of companionship services would be institutionalization.

The fact that Medicare does not pay for overtime has no bearing on the requirement to pay overtime. 

My recommendation is to have your friend speak to the next level of supervision or to someone in the human resources department to try to get this resolved internally.  I rarely recommend an employee to use a third party to resolve these types of differences. Regardless of the outcome, it ruins the employment relationship.

I hope this long response helps.

Thanks for asking Bob.

A FOLLOW UP FROM ROGER

From: Roger
Sent: Wednesday, May 02, 2007 7:36 AM
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

My LPN friend was paid two weeks ago for all the overtime that she put in since starting with her company. The type of care she provides makes her eligible for overtime pay.  The HR department was at fault and when she approached her supervisor about it, the problem was quickly resolved.

Thank you for all the time you put in for folks,

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PROFESSIONAL EMPLOYER ORGANIZATIONS (PEO'S)

Date:   April 14, 2008
To:       bobm@mckenziehr.com
Subject: Ask Bob

Name: Ana
Question: My company is considering going to a Professional Employer Organization.  Can you provide some insight on the pros and cons of PEO’S?

RESPONSE

I want to preface this response by saying that I am not a PEO fan. 

The original concept of employee leasing was great. A third party in the form of a PEO would go to smaller companies, hire all of their employees and then lease them back to the employer for a fee.  The idea was as the PEO continues to add employees, they will be in a better position to negotiate lower rates for medical insurance, workers’ compensation and payroll processing. This lower cost would be passed on to the employer allowing smaller companies to pay less for their benefits and be able to compete with the larger corporations for employees.  However, for a number of reasons, Professional Employer Organizations no longer offer a way for employers to save money.  In fact, the cost of contracting with a PEO has risen dramatically in the last few years.  Before signing with a PEO, look at your options and know the facts.  Many PEO’s have stopped offering group benefits which is the primary reason they were formed. 

In Florida, PEO’s used to make quite a bit of money on workers compensation.  In 2004, there was a major shift in the workers comp market in the state and many insurers stopped offering workers comp insurance.  During this period of time many PEO’s went out of business because they could not obtain insurance.  The Florida legislature changed the workers comp laws to the point that the advantage of using a PEO for savings in workers comp disappeared.

PEO’s then started charging administration fees and some charge in the neighborhood of $1,500 per employee per year. So a company with 40 employees will pay nearly $60,000 a year for payroll processing and human resources services. This is in addition to the workers compensation insurance and the cost of benefits.

There has been quite a bit of fraud in the industry with companies collecting workers comp premiums without an insurance policy or collecting federal taxes and not paying them. 

There is also a bit of a confusing concept known as co-employment.  Your employees will be paid by the leasing company but are assigned to you as the client company.  Since the PEO pays the employees, they are the employer of record.  But since you manage the daily activities, you can still be held liable for discrimination and harassment. The PEO can not take the liability off of the client company – nor would they want to.

One more thing - since all of your services including workers compensation, payroll, HR and sometimes benefits are all rolled under one umbrella, if you become dissatisfied with any of these services, you have to fire all four providers.

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