| Employees are often woefully ignorant or | | | | FURLOUGHS |
| mistaken about what really constitutes labor and | | | | "My company is furloughing each employee one |
| employment law concerning their own rights and | | | | day each month to save money and avoid |
| obligations and, conversely, their employers' rights | | | | layoffs. Is still legal?" It's generally legal if there's |
| and obligations. It's often the case, especially at | | | | no collective bargaining agreement (CBA) or |
| smaller firms with fewer resources, that | | | | contract regulating pay and working hours-and if |
| employers are equally as ill-informed. Here are | | | | you're a non-exempt employee. (Please review |
| some areas of confusion that often leave | | | | the overtime and off-the-clock answers above |
| employees scratching their heads and asking, "Can | | | | for further details on exempt and non-exempt |
| my company really do that? | | | | classifications.) If you're an exempt, salaried |
| PAID SICK TIME | | | | employee, however, you must be paid your |
| "Can a company get away without offering me | | | | regular salary whether your job requires one hour |
| paid sick leave?" The answer is yes, except in | | | | or 72 hours in a work week. This is all covered in |
| San Francisco and Washington, D.C., which have | | | | the Fair Labor Standards Act of 1938. Absent a |
| passed local ordinances mandating all employers | | | | CBA or contract, however, your employer can |
| offer seven sick days a year to their employees. | | | | require you to use paid time off (usually vacation |
| A similar law in Milwaukee, which offers up to nine | | | | or personal days) during the furlough time. |
| paid sick days, is undergoing a court challenge and | | | | Otherwise, the furlough would have to be for an |
| is scheduled for a court date in May 2009. | | | | entire week for the employer to withhold pay. |
| Otherwise, no laws mandate paid sick days, | | | | HOLIDAY PAY |
| although Barack Obama is pushing legislation that | | | | "I had to work on Thanksgiving. Shouldn't I be |
| would either require employers to offer sick days | | | | paid overtime?" The FLSA does not require any |
| or reward them if they do and/or punish them if | | | | employer to pay any employee for time off, |
| they don't. | | | | whether it's for holidays or vacation. Likewise, the |
| Also, every firm with 50 or more employees | | | | FLSA does not require overtime or extra pay for |
| within a 75-mile radius is obliged by the Family | | | | Saturday, Sunday or holiday work. Overtime |
| Medical Leave Act (FMLA) to offer up to 12 | | | | applies only to work performed by non-exempt |
| weeks of unpaid leave for sickness and other | | | | employees who exceed 40 hours of labor in any |
| reasons with guaranteed job protection. Some | | | | given work week. However, employees at many |
| states have similar laws with a lower | | | | businesses are covered by CBAs that govern |
| employee-count threshold. Legislation is currently | | | | working hours and pay, and state law may have |
| being considered in Washington, D.C., that would | | | | something to say in the matter as well. |
| lower the threshold nationally to 20 employees | | | | SEVERANCE PAY |
| and convert the unpaid leave into paid leave. | | | | "My company gave us each just two weeks' pay |
| VACATION TIME | | | | when they laid us off, no matter how long we |
| "My friend told me his company offers no | | | | had worked for the joint. Is this legal?" Yes, |
| vacation time. Is this legal?" Like paid sick time, | | | | severance pay is completely discretionary; no law |
| there is no law in the United States obliging | | | | exists mandating that companies award |
| employers to give employees vacation time, | | | | severance pay. However, most companies, unless |
| though it would be hard to imagine that any | | | | they're shutting down, will offer some kind of |
| company could attract quality or long-lasting | | | | severance package not only as a gesture of good |
| employees without offering vacation days. | | | | will but also as a form of legal protection. |
| However, if a business does offer vacation days, | | | | Severance packages usually come with legal |
| states generally regulate how the vacation plan is | | | | strings attached, requiring the laid-off employees |
| managed to ensure that employees are treated | | | | to sign a no-legal-action pledge before they |
| consistently, uniformly and fairly. In every state | | | | receive their checks. |
| of the union, vacation is considered a private | | | | HEALTH INSURANCE |
| enterprise policy. Also, the Fair Labor Standards | | | | "My company has about 100 employees but |
| Act (FLSA) does not require an employer to pay | | | | offers no health insurance. Shouldn't a place that |
| employees on vacation; this is a matter between | | | | large insure their employees?" Again, whether or |
| employer and employee in the eyes of the law. | | | | not to offer health insurance is usually a |
| OVERTIME PAY | | | | company's decision. No law on the national level |
| "My company put me on a salary and told me I'm | | | | mandates that employers offer employees health |
| not entitled to overtime pay. Is this legal?" The | | | | insurance, though some states have various |
| answer is-it depends. The Fair Labor Standards | | | | types of health insurance mandates. You'd have |
| Act (FLSA) recognizes two classifications of | | | | to check your state's law. (San Francisco also has |
| employees, exempt and non-exempt. The | | | | a mandate.) Once a company does offer health |
| exempt status means the employee is paid a | | | | insurance, however, it is subject to regulation by |
| salary no matter how many hours he or she | | | | several federal laws, specifically ERISA, COBRA |
| works in the work week, which is defined as any | | | | and HIPAA. For further details on these, please |
| five days in any predetermined seven-day period, | | | | check the other white papers in this section. |
| be it one hour or 70 hours. Non-exempt | | | | Things could well change in the near future as |
| employees must be paid time and a half for | | | | Congress is forging a health care reform initiative |
| every hour over 40 in the work week, and in | | | | that may or may not mandate employers to |
| some states, laws mandate overtime for any | | | | offer health insurance or pay into a federal fund |
| time worked over eight hours in a day. | | | | to help subsidize health care. There may also be |
| So, what is an exempt employee? The FairPay | | | | an individual mandate forthcoming that would |
| Overtime Rules of 2004 set up two sets of tests | | | | force each adult not covered by a spouse's or |
| to determine exempt status. First is salary, but | | | | other plan to purchase health insurance. The |
| that salary must be at least $455 a week. The | | | | landscape might be rapidly changing. |
| second test is called the duties test. Here is | | | | TERMINATION WHILE ON FMLA LEAVE |
| where both employers and employees often get | | | | "My friend was laid off while on FMLA leave. I |
| confused. Exemptions are recognized for | | | | thought her job was supposed to be protected. |
| executive, administrative and professional | | | | What gives?" Under the Family Medical Leave Act, |
| employees, but the duties tests generally question | | | | the same job or a job at least equal to the one |
| whether these employees have independent | | | | vacated while on leave must be given those |
| decision-making and supervisorial authority. So an | | | | returning after their time off. However, if during |
| employer cannot, for instance, give a receptionist | | | | the leave period the employer decides to |
| a salary and refuse to pay overtime. A | | | | downsize, a person on FMLA leave could be |
| receptionist generally has no supervisorial or | | | | included in the round of layoffs if uniform |
| decision-making authority. Exemption tests also | | | | standards are applied fairly to all being terminated. |
| exist for outside sales personnel and computer | | | | If the employer's motive is to retaliate, then the |
| personnel. Again, however, simply labeling | | | | FMLA leave-taker would have a legal standing. |
| someone as exempt is not always sufficient. The | | | | Proving retaliation, of course, would be the sticking |
| pharmaceutical industry just lost an overtime | | | | point. |
| lawsuit when the court ruled that pharmaceutical | | | | A recent court case also affirmed that employers |
| representatives do not sell but merely promote | | | | have the right to terminate for cause during |
| products and therefore are non-exempt | | | | FMLA leave. In this case, while the person was on |
| employees. | | | | leave, his temporary replacement worker |
| By law and court precedent, employers are | | | | discovered abuses and gross negligence that had |
| obliged to make good-faith efforts to classify | | | | been covered up by the leave-taker. The |
| each employee correctly and then to regulate | | | | employer investigated, verified the facts, and |
| working hours for non-exempt employees. For | | | | terminated the employee the day he returned |
| instance, if an hourly employee decides to arrive | | | | from leave. The employee sued and lost. |
| an hour early each day to drink coffee and read | | | | ENGLISH-ONLY POLICIES |
| the newspaper, he or she must be paid overtime | | | | "Can a company adopt and enforce an |
| for that hour. It's up to the company to regulate | | | | English-only policy?" The answer is yes if the |
| the hours of work through affirmative supervision | | | | policy is applied uniformly and serves a legitimate |
| and stated policies. In this case, the employee | | | | purpose. Generally speaking, an English-only rule is |
| must be informed not to punch in until his or her | | | | okay if supported by a legitimate business |
| workday begins and to use the break room for | | | | justification such as promoting communication with |
| reading the newspaper and drinking coffee before | | | | customers, coworkers, or supervisors who only |
| work. | | | | speak English, enabling employees to speak one |
| The answer in your particular case depends on | | | | language to promote safety or cooperation, or |
| whether you fall into any of the exempt | | | | facilitating supervisors' ability monitor job |
| categories and whether you pass the salary and | | | | performance. To be certain, though, be sure to |
| duties tests. | | | | check state regulations and court decisions. |
| OFF-THE-CLOCK WORKING | | | | Though this paper was written as if to benefit |
| "My employer is asking all of us to work for free | | | | and inform employees, employers too can gain |
| after 5 p.m. once or twice a week to chip in | | | | quick insight into the questions and concerns that |
| during the recession. Is this legal?" You may want | | | | routinely arise among their workforce, along with |
| to read the answer to overtime pay above for | | | | prevailing law pertaining to those questions. |
| further clarity, but the answer here is yes and no. | | | | For further details on the laws and regulations |
| Yes pertains when you're an exempt, salaried | | | | mentioned in this paper, please refer to Personnel |
| employee. Being exempt and earning a salary | | | | Concepts' comprehensive and concisely written |
| means you must be paid your salary no matter | | | | HR Desk Reference and other powerful tools |
| how few or how many hours in a week your job | | | | available online. |
| demands you to perform. If you're a | | | | Note: The details in this white paper are provided |
| non-exempt, hourly employee, you must be paid | | | | for informational purposes solely. All answers are |
| time and a half for each hour or portion of an | | | | general in nature, not legal advice and not |
| hour beyond 40 in the work week (and in some | | | | warranted or guaranteed. Readers are cautioned |
| states each hour or portion thereof after eight | | | | not to rely on this information. Because laws |
| hours each day). If you're non-exempt and | | | | change over time and in different jurisdictions, it is |
| somehow paid a salary, your employer still must | | | | imperative that you consult an attorney in your |
| compute your hourly rate and pay overtime at | | | | area regarding legal matters and an accountant |
| time and a half. | | | | regarding tax matters. |