Do we have to pay an exempt employee who was not at work?
I have an exempt employee who was out for 4 days due to dental issues. He worked from home 2 of those 4 days on a company issued computer by responding to emails. Can I make him take 4 days of vacation time or do I have to pay for the 2 days he was working from home?
Ann Kiernan replies:
Federal wage and hour law says that, except in certain specified circumstances, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. However, the regulations contain seven exceptions to this salary basis, "no pay-docking" rule, one of which allows you to make deductions from salary of exempt employees who are absent from work for one or more full days due to sickness or disability, if deductions are made under a bona fide plan, policy or practice of providing wage replacement benefits for these types of absences.
As I read the regulations, you cannot make him use vacation days, but only sick days. And since he was working some of the time on two of those days, he should get regular salary for those days. You may want to check out the Department of Labor's fact sheet on salary deductions.
Showing posts with label legal. Show all posts
Showing posts with label legal. Show all posts
Wednesday, July 07, 2010
Wednesday, April 14, 2010
The State of Senior Care in California
I WAS SHOCKED TO LEARN THAT MOST ASSISTED LIVING CARE CENTERS ARE PRIVATE PAY ONLY.
The lowest price I have found for assisted living with no nurse is 2350.00 per month, if I had to pay that amount of rent I would hope it was a very nice big house to live in and that I owned it
My question is how is it legal for these places to charge this much? How is it legal for them to drain the ederly people out of their life savings and then kick them out the second they have no money left?
I would like to see some MEDIA attention to this matter and to start in the Sacramento Area, also what happens to the people that have medi-cal,medicare and have no savings?
We need to start speaking out about these companies that are draining the elderly out of their savings. I do not think anyone should have to pay 2350.00 or more to live with a piece of mind.
The lowest price I have found for assisted living with no nurse is 2350.00 per month, if I had to pay that amount of rent I would hope it was a very nice big house to live in and that I owned it
My question is how is it legal for these places to charge this much? How is it legal for them to drain the ederly people out of their life savings and then kick them out the second they have no money left?
I would like to see some MEDIA attention to this matter and to start in the Sacramento Area, also what happens to the people that have medi-cal,medicare and have no savings?
We need to start speaking out about these companies that are draining the elderly out of their savings. I do not think anyone should have to pay 2350.00 or more to live with a piece of mind.
Monday, July 21, 2008
Wednesday, February 06, 2008
Legal News..from FairMeasures!
Legal News
Company Wins Case With Good Investigation & Training
- By Rita Risser, California attorney at law
No matter how good your anti-harassment policy and practice, harassment happens. But if your company responds to complaints with a good investigation and training, according to a new case you will not have to pay punitive damages.
DeVilbiss Company had a zero tolerance sexual harassment policy. A male accountant complained about sexual horseplay from his female supervisor. The company conducted four separate investigations of his complaint, but none revealed evidence that would have justified firing the supervisor. In the interviews, coworkers were asked neutral questions which were open ended and not suggestive, for example, "Have you seen any inappropriate behavior in the department?"
The company instituted a harassment prevention training program and required all employees, including the supervisor and the accountant, to attend.
The company also hired outside employment law specialists to look into whether its internal investigations had been proper and thorough and contracted with them to investigate the accountant's claims further. The outside specialists determined that the company's investigations had been thorough and confirmed the company's conclusions.
The accountant argued it was unreasonable for his boss to remain as his supervisor. The company responded that the small size of the plant and of the accounting department made it impossible to accommodate his request for another supervisor unless the supervisor was terminated. Terminating her without more evidence would have exposed the company to legal action by her. Moreover, there were no further complaints by the accountant of any sexual harassment after the company took its actions in response to his initial complaint.
The court upheld the actions of the company and denied punitive damages.
What this means to you: Whenever there is a complaint of harassment, make sure your company does everything right. It could save you some big money!
Dominic v. DeVilbiss Air Power Co., (8th Cir. 2007)
The best harassment prevention training we know of is ... ours! Check it out.
Big Money
Ford Motor Co. and others agreed to pay $1.6 million to settle a race discrimination class action case arising from an apprenticeship test that adversely impacted African Americans.
A Hawaii man won $2.5 million in a race discrimination settlement against Lockheed Martin.
Fair Measures reports only settlements and final judgments - never jury verdicts.
How much does training cost? A lot less than a lawsuit! Email us to find out how our training can help your company.
Ask the Lawyers #1
We laid off an employee who now says he's disabled - should we worry?
We have an employee who we have just had to let go due to lack of work. This employee is now saying they are going to sue the company under the ADA guidelines. We did not know of any mental condition nor was this employee let go for such said reason. Does the company need to worry about this threat?
Rita Risser replies:
I wouldn't worry, exactly, but now would be a good time to make sure all of your documentation is in order. Get witness statements from everyone as to why s/he was picked for layoff versus someone else, and declaring they had never received any notice of a mental condition. If the employee files with the EEOC, then hire a local attorney. Also, if the employee files for unemployment and states on the form that s/he they believes it was due to discrimination, you need to set the record straight. You do not oppose the unemployment, but document the correct reason.
Good luck.
How to handle layoffs with "risky" employees is covered in our Managing Within the Law II program.
Ask the Lawyers #2
We owe employee and employee owes us - can we hold check until he pays us back?
I am an HR representative for a hotel chain. Some accounting problems show that we owe an employee money (payroll). The employee is salaried and we owed money from past payroll checks, however, by a physical count of what we call a 'bank' the employee owes us money.
The company put a stop payment on the check (not my idea) and reissued another check. They are holding the check in lieu of the employee paying the amount owed in their "bank." Is this allowed? I think not but can't find any legal precedence to support. Thank you for your help in this matter.
Rita Risser replies:
It depends on state law and you should talk to a local attorney. But in California and many other states, you have to pay employees for working and if they owe you money, they can then pay you back -- you cannot deduct what they owe. If they don't pay, you could take them to small claims court.
Every manager needs to know the basics of employment law. Check out our Managing within the Law.
Ask the Lawyers #3
Can managers pay above the salary range?
Is it legal for managers to pay certain staff whatever they choose to even though we have salary ranges and performance targets? We have some staff who are paid well beyond their "worth" and others that are paid well below market value?
Rita Risser replies:
Legally, you can pay people whatever you want, as long as you don't discriminate on the basis of sex, race, age, etc. If the managers are inconsistent in their own pay practices, and there are differences of gender or national origin among employees, then it may at least appear to be illegal unless the discrepancies are justified by legitimate business reasons. If, on the other hand, each manager is consistent but you have inconsistencies across the organization, that is safer legally. However, sometimes the problem is that random behavior by managers might look like a discriminatory pattern if seen across the organization. That's why most companies have salary grades and try to have consistency among employees.
Good luck.
The only thing worse than an untrained manager is an untrained manager who treats employees inconsistently for no good reason. Call us to help you. 1-800-458-2778.
Go here for an archive of eNews questions and articles.
We encourage you to pass this announcement on to your colleagues and friends, as long as the following credit line is used: © Copyright 2008, Fair Measures Inc., http://www.FairMeasures.com
Disclaimer: This information is provided with the understanding that the author and publisher are not engaged in rendering legal or other professional services. The publishers disclaim any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information. This information is not a substitute for the advice of a competent legal or other professional person.
Company Wins Case With Good Investigation & Training
- By Rita Risser, California attorney at law
No matter how good your anti-harassment policy and practice, harassment happens. But if your company responds to complaints with a good investigation and training, according to a new case you will not have to pay punitive damages.
DeVilbiss Company had a zero tolerance sexual harassment policy. A male accountant complained about sexual horseplay from his female supervisor. The company conducted four separate investigations of his complaint, but none revealed evidence that would have justified firing the supervisor. In the interviews, coworkers were asked neutral questions which were open ended and not suggestive, for example, "Have you seen any inappropriate behavior in the department?"
The company instituted a harassment prevention training program and required all employees, including the supervisor and the accountant, to attend.
The company also hired outside employment law specialists to look into whether its internal investigations had been proper and thorough and contracted with them to investigate the accountant's claims further. The outside specialists determined that the company's investigations had been thorough and confirmed the company's conclusions.
The accountant argued it was unreasonable for his boss to remain as his supervisor. The company responded that the small size of the plant and of the accounting department made it impossible to accommodate his request for another supervisor unless the supervisor was terminated. Terminating her without more evidence would have exposed the company to legal action by her. Moreover, there were no further complaints by the accountant of any sexual harassment after the company took its actions in response to his initial complaint.
The court upheld the actions of the company and denied punitive damages.
What this means to you: Whenever there is a complaint of harassment, make sure your company does everything right. It could save you some big money!
Dominic v. DeVilbiss Air Power Co., (8th Cir. 2007)
The best harassment prevention training we know of is ... ours! Check it out.
Big Money
Ford Motor Co. and others agreed to pay $1.6 million to settle a race discrimination class action case arising from an apprenticeship test that adversely impacted African Americans.
A Hawaii man won $2.5 million in a race discrimination settlement against Lockheed Martin.
Fair Measures reports only settlements and final judgments - never jury verdicts.
How much does training cost? A lot less than a lawsuit! Email us to find out how our training can help your company.
Ask the Lawyers #1
We laid off an employee who now says he's disabled - should we worry?
We have an employee who we have just had to let go due to lack of work. This employee is now saying they are going to sue the company under the ADA guidelines. We did not know of any mental condition nor was this employee let go for such said reason. Does the company need to worry about this threat?
Rita Risser replies:
I wouldn't worry, exactly, but now would be a good time to make sure all of your documentation is in order. Get witness statements from everyone as to why s/he was picked for layoff versus someone else, and declaring they had never received any notice of a mental condition. If the employee files with the EEOC, then hire a local attorney. Also, if the employee files for unemployment and states on the form that s/he they believes it was due to discrimination, you need to set the record straight. You do not oppose the unemployment, but document the correct reason.
Good luck.
How to handle layoffs with "risky" employees is covered in our Managing Within the Law II program.
Ask the Lawyers #2
We owe employee and employee owes us - can we hold check until he pays us back?
I am an HR representative for a hotel chain. Some accounting problems show that we owe an employee money (payroll). The employee is salaried and we owed money from past payroll checks, however, by a physical count of what we call a 'bank' the employee owes us money.
The company put a stop payment on the check (not my idea) and reissued another check. They are holding the check in lieu of the employee paying the amount owed in their "bank." Is this allowed? I think not but can't find any legal precedence to support. Thank you for your help in this matter.
Rita Risser replies:
It depends on state law and you should talk to a local attorney. But in California and many other states, you have to pay employees for working and if they owe you money, they can then pay you back -- you cannot deduct what they owe. If they don't pay, you could take them to small claims court.
Every manager needs to know the basics of employment law. Check out our Managing within the Law.
Ask the Lawyers #3
Can managers pay above the salary range?
Is it legal for managers to pay certain staff whatever they choose to even though we have salary ranges and performance targets? We have some staff who are paid well beyond their "worth" and others that are paid well below market value?
Rita Risser replies:
Legally, you can pay people whatever you want, as long as you don't discriminate on the basis of sex, race, age, etc. If the managers are inconsistent in their own pay practices, and there are differences of gender or national origin among employees, then it may at least appear to be illegal unless the discrepancies are justified by legitimate business reasons. If, on the other hand, each manager is consistent but you have inconsistencies across the organization, that is safer legally. However, sometimes the problem is that random behavior by managers might look like a discriminatory pattern if seen across the organization. That's why most companies have salary grades and try to have consistency among employees.
Good luck.
The only thing worse than an untrained manager is an untrained manager who treats employees inconsistently for no good reason. Call us to help you. 1-800-458-2778.
Go here for an archive of eNews questions and articles.
We encourage you to pass this announcement on to your colleagues and friends, as long as the following credit line is used: © Copyright 2008, Fair Measures Inc., http://www.FairMeasures.com
Disclaimer: This information is provided with the understanding that the author and publisher are not engaged in rendering legal or other professional services. The publishers disclaim any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information. This information is not a substitute for the advice of a competent legal or other professional person.
Thursday, January 03, 2008
Good Reading and Good TO know
Your Legal "To Do" List - By Rita Risser, attorney at law
Looking back over the past year, we've seen a few trends in employment law. What action steps can you take now to prevent costly lawsuits?
Mandate (good) training for all your reports
The courts are clear: employers who fail to train employees are negligent and can be sued for harassment. But the courts don't uphold just any training - it has to be good and effective training.
In one case, the U.S. government ordered a company to stop computer-based training (CBT) because it didn't give real-life skills. The board found that CBT effectively provided factual information, but did not give employees an understanding of processes or the ability to ask questions about abnormal situations. What was lacking was "training that goes beyond fact memorization and answers the question 'Why?'"
The board told the company to replace computer tutorials with "face-to-face training conducted by personnel with process-specific knowledge and experience who can assess trainee competency."
Of course, when you do live training, make sure it is supported by everyone in the company from the top down. One company lost a case in 2007, in part because the Chairman walked into a harassment prevention training and made an inappropriate "joke."
Follow proper procedure in harassment claims
One good trend for employers - the courts will protect you from suit if you have a proper procedure and follow it. In one 2007 case, a federal Court of Appeals ruled against a victim of harassment who was fired for refusing to work with the accused harasser. The court found the company promptly and fairly investigated her claim, properly warned the accused, and offered the victim reasonable options which she refused.
In contrast, if you don't follow procedure, you lose. In another 2007 case, the harasser properly was given a final written warning, and then after harassing again, given a second written warning instead of being terminated. When he harassed a third time, the victim quit and sued. The court said because he was not terminated the company emboldened him to continue harassing. The victim was allowed to take her case to jury trial.
What you should do: If you are in a position to require people to attend training, make it one of their objectives for the coming year. All employees need harassment prevention and all managers should take Managing within the Law to learn about following proper procedure. Remember that cheaper and easier training is not better. Not only will it make you look bad when you get sued, it makes you more likely to get sued in the first place, because people don't learn in cheap and easy training.
Training - good training - is the only way to prevent mistakes and stop costly lawsuits.
Check out our engaging, interactive, and plain-spoken training programs here.
Big Money
A claim that Knicks coach Isiah Thomas sexually harassed and wrongfully terminated Anuch Sanders has been settled for $11.5 million. In October, 2007 a federal jury in New York had awarded Ms. Sanders $11.6 million in punitive damages, plus compensatory damages and legal fees. The settlement avoids an appeal of the jury verdict.
A San Diego Children's Hospital agreed to pay $2.7 million to 150 former employees denied meal breaks.
Lowell (MA) High School settled a gender bias suit for over $1 million.
3000 home health care workers are to receive $2.2 million for unpaid time traveling between clients and working more than 40 hours in a week.
Fair Measures reports only settlements and final judgments - never jury verdicts.
How much does training cost? A lot less than a lawsuit! Call us at 800-458-2778 now.
Ask the Lawyers #1
Our company has facilities in many states - what laws should we follow?
If a hotel management company has properties all over the United States are they expected to have the same policies in effect at each location or can they go by the state law which presides? (for lunch breaks, OT regulations etc..)
Thank you.
Rita Risser and Ann Kiernan reply:
Federal law provides the minimum standards for all locations, but if the state law for a particular site provides more for employees, the company must follow the law which is most beneficial to the employees. You can have the same polices for all locations as long as the policies follow the most generous state law on the subject.
Every state requires employers to prevent discrimination and harassment. Find out how we can help you do that through our program, Managing Within the Law.
Ask the Lawyers #2
Manager is out sick a lot - can we fire him?
Our workshop manager is increasingly taking time off when he is sick. We suspect a chronic illness, but do not have any official notification. My boss wants me to find out how to deal with this situation legally. A manager's presence is necessary for the shop to run properly and our products to get done. We feel his illness is impacting his job performance and our business is suffering because of it. We don't know if we can let him go and replace him or if we need to work with him through whatever is going on.
Rita Risser replies:
The Americans with Disabilities Act (ADA) requires that employers enter into an interactive process with disabled employees. In other words, talk to him. I would say something like this: "We notice you are taking sick time, and we are concerned about your health. We don't want to invade your privacy but if you have a chronic or disabling condition, you do have rights under the Americans with Disabilities Act or the Family Medical Leave Act. And of course you are entitled to use all your accrued sick leave. We also have the right to have someone here to do the work. What can we do to resolve this situation?" Then begin your discussion.
Ultimately, once he exceeds his FMLA and sick leave, even if he is disabled he can be terminated (or released on disability) if he can't perform the essential functions of the job, one of which is to be there. However, it is best if you work closely with a local attorney if you decide to go this route.
Good luck.
Learn how to comply with ADA, FMLA and more in our program, Managing Within the Law Part II.
Ask the Lawyers #3
Spanish speaking employees are making negative comments - can we make them speak English?
Inside of our company, there is a handful of employees, all men, who are bi-lingual. They speak English fairly well and are fluent in Spanish. When they get together they all immediately speak Spanish leaving everyone else in the room in the dark with regard to their discussion. However; many of us know a little Spanish here and there and can fairly guess that they are making negative comments, or just plain talking about non work related topics. Can we enforce an English-only work place?? Your advice on this topic will be appreciated.
Rita Risser replies:
Wow - people who speak only English at your workplace never make negative comments and never talk about non-work related topics??? Although there are a few limited circumstances when employers can enforce English-only in the workplace, the general rule is that people should ignore the conversations of others, and if any reprimands are to be made for making negative comments or non-work-related conversation, everyone must be reprimanded, no matter what language they speak.
How do you prevent misunderstandings like this? Our Respectful Workplace program facilitates good relationships at work.
Go here for an archive of eNews questions and articles.
We encourage you to pass this announcement on to your colleagues and friends, as long as the following credit line is used: © Copyright 2008, Fair Measures Inc., http://www.FairMeasures.com
Looking back over the past year, we've seen a few trends in employment law. What action steps can you take now to prevent costly lawsuits?
Mandate (good) training for all your reports
The courts are clear: employers who fail to train employees are negligent and can be sued for harassment. But the courts don't uphold just any training - it has to be good and effective training.
In one case, the U.S. government ordered a company to stop computer-based training (CBT) because it didn't give real-life skills. The board found that CBT effectively provided factual information, but did not give employees an understanding of processes or the ability to ask questions about abnormal situations. What was lacking was "training that goes beyond fact memorization and answers the question 'Why?'"
The board told the company to replace computer tutorials with "face-to-face training conducted by personnel with process-specific knowledge and experience who can assess trainee competency."
Of course, when you do live training, make sure it is supported by everyone in the company from the top down. One company lost a case in 2007, in part because the Chairman walked into a harassment prevention training and made an inappropriate "joke."
Follow proper procedure in harassment claims
One good trend for employers - the courts will protect you from suit if you have a proper procedure and follow it. In one 2007 case, a federal Court of Appeals ruled against a victim of harassment who was fired for refusing to work with the accused harasser. The court found the company promptly and fairly investigated her claim, properly warned the accused, and offered the victim reasonable options which she refused.
In contrast, if you don't follow procedure, you lose. In another 2007 case, the harasser properly was given a final written warning, and then after harassing again, given a second written warning instead of being terminated. When he harassed a third time, the victim quit and sued. The court said because he was not terminated the company emboldened him to continue harassing. The victim was allowed to take her case to jury trial.
What you should do: If you are in a position to require people to attend training, make it one of their objectives for the coming year. All employees need harassment prevention and all managers should take Managing within the Law to learn about following proper procedure. Remember that cheaper and easier training is not better. Not only will it make you look bad when you get sued, it makes you more likely to get sued in the first place, because people don't learn in cheap and easy training.
Training - good training - is the only way to prevent mistakes and stop costly lawsuits.
Check out our engaging, interactive, and plain-spoken training programs here.
Big Money
A claim that Knicks coach Isiah Thomas sexually harassed and wrongfully terminated Anuch Sanders has been settled for $11.5 million. In October, 2007 a federal jury in New York had awarded Ms. Sanders $11.6 million in punitive damages, plus compensatory damages and legal fees. The settlement avoids an appeal of the jury verdict.
A San Diego Children's Hospital agreed to pay $2.7 million to 150 former employees denied meal breaks.
Lowell (MA) High School settled a gender bias suit for over $1 million.
3000 home health care workers are to receive $2.2 million for unpaid time traveling between clients and working more than 40 hours in a week.
Fair Measures reports only settlements and final judgments - never jury verdicts.
How much does training cost? A lot less than a lawsuit! Call us at 800-458-2778 now.
Ask the Lawyers #1
Our company has facilities in many states - what laws should we follow?
If a hotel management company has properties all over the United States are they expected to have the same policies in effect at each location or can they go by the state law which presides? (for lunch breaks, OT regulations etc..)
Thank you.
Rita Risser and Ann Kiernan reply:
Federal law provides the minimum standards for all locations, but if the state law for a particular site provides more for employees, the company must follow the law which is most beneficial to the employees. You can have the same polices for all locations as long as the policies follow the most generous state law on the subject.
Every state requires employers to prevent discrimination and harassment. Find out how we can help you do that through our program, Managing Within the Law.
Ask the Lawyers #2
Manager is out sick a lot - can we fire him?
Our workshop manager is increasingly taking time off when he is sick. We suspect a chronic illness, but do not have any official notification. My boss wants me to find out how to deal with this situation legally. A manager's presence is necessary for the shop to run properly and our products to get done. We feel his illness is impacting his job performance and our business is suffering because of it. We don't know if we can let him go and replace him or if we need to work with him through whatever is going on.
Rita Risser replies:
The Americans with Disabilities Act (ADA) requires that employers enter into an interactive process with disabled employees. In other words, talk to him. I would say something like this: "We notice you are taking sick time, and we are concerned about your health. We don't want to invade your privacy but if you have a chronic or disabling condition, you do have rights under the Americans with Disabilities Act or the Family Medical Leave Act. And of course you are entitled to use all your accrued sick leave. We also have the right to have someone here to do the work. What can we do to resolve this situation?" Then begin your discussion.
Ultimately, once he exceeds his FMLA and sick leave, even if he is disabled he can be terminated (or released on disability) if he can't perform the essential functions of the job, one of which is to be there. However, it is best if you work closely with a local attorney if you decide to go this route.
Good luck.
Learn how to comply with ADA, FMLA and more in our program, Managing Within the Law Part II.
Ask the Lawyers #3
Spanish speaking employees are making negative comments - can we make them speak English?
Inside of our company, there is a handful of employees, all men, who are bi-lingual. They speak English fairly well and are fluent in Spanish. When they get together they all immediately speak Spanish leaving everyone else in the room in the dark with regard to their discussion. However; many of us know a little Spanish here and there and can fairly guess that they are making negative comments, or just plain talking about non work related topics. Can we enforce an English-only work place?? Your advice on this topic will be appreciated.
Rita Risser replies:
Wow - people who speak only English at your workplace never make negative comments and never talk about non-work related topics??? Although there are a few limited circumstances when employers can enforce English-only in the workplace, the general rule is that people should ignore the conversations of others, and if any reprimands are to be made for making negative comments or non-work-related conversation, everyone must be reprimanded, no matter what language they speak.
How do you prevent misunderstandings like this? Our Respectful Workplace program facilitates good relationships at work.
Go here for an archive of eNews questions and articles.
We encourage you to pass this announcement on to your colleagues and friends, as long as the following credit line is used: © Copyright 2008, Fair Measures Inc., http://www.FairMeasures.com
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