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support to answer the tough questions you face on a daily basis.
If you need more detailed information on a subject or topic, our
experts can point you in the right direction for the resources you need.
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Here are examples of questions
frequently asked on the HR Answerline:
(Click on the question to see the answer.)
8
When disciplining employees, do we have to treat everyone exactly
the same?
8 Do we have to pay an employee who works unauthorized overtime?
8
Can we change an employee's job duties without the employee's
consent?
8 What precautions should you take to monitor leaves of absence?
8
Do we have to offer COBRA coverage to an employee who is fired
for misconduct?
8 Can we do credit checks on applicants and current employees?
8
Do employees have to be paid overtime for working weekends,
nights, or holidays?
Q. Do written policies create a contract?
A. The simple act of putting your policies in writing should not create a
binding contract if the policies are written as guidelines that explain
generally or typically what your requirements are and how employees
normally will be treated. However, you can create a contract by using
language that conveys rigid rules that must be followed exactly as
written in all circumstances.
Therefore, you should build flexibility into your wording and steer clear
of any promises that could be interpreted as a contract. Your policies
should not, for example:
1. State that the organization will "only" or "always" do something or
"must" act in a particular way;
2. Describe employees as "permanent;"
3. State that employees will be terminated only for "cause;"
4. Make promises of job security; or
5. Use all-inclusive lists, such as in disciplinary procedures or work rules.
Instead, you should use terms such as "generally," "typically,"
"usually," and "may" so that managers have flexibility in interpreting
and applying the policies. In addition, you should specifically retain
management's right to update, change unilaterally, and implement all
policies as management sees fit. Finally, you should include a strong
"at-will" statement that clearly specifies that all employees (who do
not have contracts or collective bargaining agreements specifying
otherwise) may quit at any time and for any reason or may be
terminated at any time and for any reason. As an added safeguard,
have your attorneys review your policies to make sure they do not
create a contract.
Q. When disciplining employees, do we have to treat everyone
exactly the same?
A. It is true that a lot of the litigation aimed at employers arises out of
the inconsistent application of discipline. To prevent these claims,
therefore, some employers assume that they must apply the exact same
discipline and follow the exact same procedures for each employee in
order to be "consistent." However, you are not required to treat every
employee the same way. Rather, you should try to treat "similarly
situated" employees in the same manner.
Typically, courts consider a number of factors to determine if
employees are similarly situated, including:
1. The nature and severity of the incidents leading to discipline;
2. Past performance and disciplinary records;
3. Job duties and status; and
4. Length of employment.
For example, an employee who has been with the organization for five
years and has a good performance record with no disciplinary
infractions may be treated more leniently than an employee who has
only worked for a year and has several documented performance or
disciplinary problems. Alternatively, a manager who uses profanity
may be disciplined more severely than a nonmanagerial employee who
uses the same language, because the manager is supposed to enforce
the work rules and set an example.
Employers also should maintain the discretion to use more serious
disciplinary measures (such as suspension or termination) or skip
steps altogether, depending on the severity of the employee's
misconduct or performance deficiencies. In addition, some employers
do not apply these multi-step policies to new, introductory employees
since a lengthy disciplinary process may only prolong a bad hiring
decision. To limit the inconsistencies and to help ensure that discipline
is administered in an evenhanded manner, you should have clearly
written disciplinary procedures, train supervisors in implementing the
policies, and regularly review disciplinary and termination decisions.
Q. Do we have to pay an employee who works unauthorized
overtime?
A. Under the Fair Labor Standards Act (FLSA), employers must pay
employees for all hours they are permitted to work. Thus, the FLSA
requires an employer to pay employees when it allows them to work
overtime, even when the employees have not been authorized to do
so. Although an employer generally must pay the overtime, it may
discipline employees according to their normal disciplinary procedures
if they work extra hours without prior authorization.
Q. Can we change an employee's job duties without the
employee's consent?
A. Yes. Unless an employee has a contract or collective bargaining
agreement that specifies his job duties, an employer may change job
duties as it needs. Many employers alert employees to the possibility
of a change or addition in job duties by including a sentence in job
descriptions that states the employee is expected to perform all job
duties required by the employer.
Q. What precautions should you take to monitor leaves of
absence?
A. HR professionals can take control of compliance by implementing a
system to identify employees who may be covered by both the
Americans with Disabilities Act (ADA) and the Family and Medical
Leave Act (FMLA). To this end, you should: (1) require medical
certification for all health-related leaves to determine whether the
ADA, FMLA, or both should apply; (2) at the end of an FMLA leave,
determine if the employee is disabled under the ADA and entitled to
further leave as an accommodation; and (3) evaluate your
reinstatement policy to be sure it allows for return to the same job,
not just an equivalent job, for employees who have been covered
simultaneously by both the ADA and FMLA.
Q. Do we have to offer COBRA coverage to an employee who is
fired for misconduct?
A. Employers can refuse to provide COBRA coverage when an
employee has been terminated for "gross misconduct." The term
"gross misconduct" is not defined in the COBRA statute or regulations
but has been interpreted to require a high degree of misconduct before
an employer may deny continuation coverage. For example, courts
have found that stealing from the employer and cash handling
irregularities may be considered gross misconduct under COBRA.
However, most violations of work rules, even serious work rules such
as a breach of company confidence, generally will not meet the
standard of gross misconduct.
Q. When calculating overtime, can you consider the average
number of hours an employee works over several weeks?
A. Generally, no. The FLSA requires employers to pay nonexempt
workers overtime for all hours worked over 40 in a single workweek
period; the hours may not be averaged over two or more weeks. A
workweek is defined as a fixed period of 168 hours or seven
consecutive 24-hour days. Thus, if an employee works 30 hours one
week and 50 hours the next, he must receive overtime compensation
for the hours over 40 that he worked in the second week (even though
the average number of hours for the two weeks is 40). This is the
case regardless of whether the employee is paid on a daily, weekly,
biweekly, monthly, or other basis.
There are two exceptions to this rule:
(1) hospitals and residential care facilities are permitted to establish a
14-day period in lieu of the seven-day workweek for purposes of
computing overtime, if the affected employees agree to it; and
(2) public agencies may elect to pay fire protection and law
enforcement employees overtime after they have worked a set
number of hours (212 hours for fire protection employees and
171 hours for law enforcement employees) per work period
(defined as 28 consecutive days) instead of after 40 hours in a
single workweek.
Q. Can we do credit checks on applicants and current
employees?
A. Generally, employers may perform credit checks on both applicants
and employees. However, if you perform these checks, you must
comply with the Fair Credit Reporting Act (FCRA). The FCRA requires
employers to comply with comprehensive notice, consent, and
disclosure obligations both prior to performing a credit check and after
the results of the check are reported.
Q. Can we require that employees work overtime?
A. If you do not have a collective bargaining agreement or other
contract with your employees that limits the number of overtime hours
employees may work, you may require employees to work as much
overtime as you need. The Fair Labor Standards Act (FLSA) and its
regulations do not limit the number of hours that nonexempt
employees may work in any workweek and do not prohibit employers
from requiring them to work overtime. The FLSA only requires that
these employees be paid a premium wage of one and one-half times
their regular rate of pay for all hours worked over 40 in a single
workweek.
As a general rule, states also do not place a limit on the number of
hours an employee may work (provided the employee is not a minor)
or prohibit an employer from requiring employees to work overtime
(although a few, such as Illinois, require one day of rest a week, and
one, Maine, actually limits the number of overtime hours employees
can work). As under the FLSA, most states simply require employers
to pay the appropriate overtime rate for all hours worked over 40 in a
single workweek. A few, such as California, also require daily overtime
to be paid.
While it may be lawful to require the overtime, you should take into
consideration the hardship that it may be causing your employees.
Many employees may have outside obligations that the overtime
affects, such as childcare responsibilities or classes. Other employees
may just be tired of working so many hours in a week. To help deal
with these issues, some employers try creative approaches, such as
allowing workers to volunteer for overtime or rotating the overtime so
that the same employees are not having to work extra hours every
week. Other employers provide additional benefits (such as paid
meals during overtime hours or extra vacation days) or even additional
pay to show employees their appreciation. If you expect the
mandatory overtime to continue for a long period of time, you also
should consider whether it would be just as cost effective to hire
additional employees. Although new employees mean additional
benefits and payroll expenses, these costs may be less than replacing
employees who are burned out from too much overtime.
Q. Do employees have to be paid overtime for working
weekends, nights, or holidays?
A. Generally, no. Nonexempt employees must be paid the overtime
rate only for each hour actually worked in excess of 40 hours during a
workweek. Thus, employers are not required to pay the overtime rate
for work performed on a holiday, weekend, or evening, as long as the
employee's total hours worked in that workweek are less than 40.
Employers that voluntarily pay at least time and one-half for time
worked on a holiday, weekend, or evening also may be able to credit
the extra compensation towards overtime payments for the same
week.
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