Legal wage reduction

BarbG

If an employee has a work comp event, with permanent restrictions, and his work duties have become much less than his original job description demands, can an employer adjust his wages to be in line with the value of the duties he is performing? We have allowed an employee to work at reduced duty for 9 mos. His pay rate remained the same because we were giving him time to rehabilitate. He never did, and probably never will. In the last month, even working under less physical demands, he has come forward saying he has suffered yet another two additional incidents of injury. Doctors reports have verified his 'new' injury. He would fall under both ADA and Work Comp. And possibly will be placed on FMLA. We can no longer accommodate his confining restrictions. But......if he returns to the light duty in the future, we would like to lower his wage rate to the value of the duties he's performing. Is this allowed??

Pork

[font size="1" color="#FF0000"]LAST EDITED ON 05-07-04 AT 01:58PM (CST)[/font][br][br]BARBG: I believe, if sitting in your seat it is time to provide a job description with physical requirements in detail to a W/C case person for consideration by the physician currently handling this ee. Ask for a medical opinion of the individual's physical ability to accomplish the physical demands of the position for which you are considering. "Light duty or accomodating duty" is always suppose to be for a temporary period of time and designed to cooperate with the physician's medical treatment plan.

A medical opinion of "qualified or medical disqualification" to work in this industrial environment is what you need in order to move forward. Apparantly, your ee has not asked for accomodation due to any specific medical restrictions which allows you to move forward with a definate plan to use this person in an appropriate position or to face up to the fact that the company is carrying a "ticking liability", it is just a matter of time before the company will be faced with an issue.

Out most recent ee has finally resigned and left our company. He stuck us for a knee surgery, 6 months of physical rehab treatment with/STD, followed with 6 months of changed duty, excess to our needs. He was a truck driver, finally got the physician to medicallly disqualify him for ever returning to "truck driving". We reduced his pay, trained him to receive night shift feed ingredients, which was approved by his physician, as long as he did not have to climb in or out of a 18 wheeler to do the work of receiving. We agreed to restrictions and gave him a report to time and date. He started and work for 6 weeks before resigning. He made two very costly errors in receiving tons of feed ingredients and was on his last error before being terminated for cause.

You can do it but you must have a plan and supporting documents to protect your plan and the execution, thereof. I am sorry, I intended to add that the reduced wage may require your W/C carrier to also continue a reduced STD payment to the individual to off set the loss in wage earning capacity. My truck driver did not have his wage reduced just his professional ability to drive. I just love filling out the referral forms on this driver for another driving position. He has not landed a 18 wheeler position but he is driving a van and servicing retail stores with "greeting cards".

PORK

BarbG

Thanks for responding, Pork! If I understand you correctly, I need a doctor to say my e/e can no longer perform the mechanic duties of his job. Then, if he can't perform his duties, he could be let go. But......letting him go, could possibly set us up for a retaliation suit (re: work comp claim), age discrimination (because he's over 40), or possible problems regarding ADA. And believe me, he would do it. Our thoughts were to accommodate as long as we could, but now we can't, his restrictions are too confining. The job he's been performing is not in a class all its own.....it falls under the 'mechanic's job description. Under what conditions CAN an employer reduce wages?? Would we have to reclassify the job and give it its own wage rate?

Don D

It really depends on your state's comp laws, since there is no federal comp legislation. In my state if the ee could not perform the essential functions of his position, he could be either terminated or reassigned, or certainly we could craft a special job for him (unlikely). And if we wanted to, we could reassign him to another task and if it carried a lower wage, that would be his new wage. I have no idea what your state comp laws would allow.

Pork

BARBG: Once you get the physician's professional evaluation and opinion, which medically disqualifys this person for a mechanics job task, the company is in the right to offer the employee another poisition at a given rate of pay either "up or down", it puts the action into the ee's "court for play". We have terminated, and we have placed the ee into a different position which is within the physician's written opinion for physical labor. The truck driver was restricted from climbing, bending, squatting, running, and sitting for long periods of time without exercising his knee. The receiving job with the use of an elevator took in all of the physician's restrictions, granted he was excess to our needs so we cut everyone's hours to 32 and made room for this X-W/C injuried truck driver. The pressure from the ees was most heated and the individual chose to get out of the "frying pan". Was that retailatory, no it was most accomodating to the really worthy ee and the team would have been glad to assist, but the team knew the truth while we knew nothing but rumors. We have another well loved ee on W/C disability, we the company will ride with him as far as we can. However, his age is now reaching a point where our support is getting in the way of his ability to claim SS Disability. He must be unemployed for at least 6 months before his application can even be considered. SS disability is a life time benefit and the company should never retain anyone which will truely hinder their rights to SS ability.

Remember your physician's opinion gives the company the right to take reasonable and appropriate action. Terminate is one of those rights of action, transfer within the physical limitations of the physician's opinion is another one of those rights of action, which may include a change in rate of pay. If sweeping in the plant is the only thing worthy he can do, then transfer him and pay him what you would pay anyone doing those task. If he is capped in a rate of pay, make sure he is aware. If he does not want the accomodation let him sign a refusal and tell him when he will be able to pick up his last check!

Sometimes, we must be fair and let the chips fall where they may. Whatever you do in the W/C area make sure your company and the W/C carrier are in concert with your actions and their responding actions. I never do anything in this arena without talking to my carrier claims person who is in Dallas, Texas. We use the e-mail route to document our telephonic discussions which become discovery material; we talk and write and get to the end of the tunnel together and playing on the same sheet of music. Yes we have a few cases in "controvert" which is ok! The owners, however, do not allow the carrier to settle for one red cent, as long as he knows/feels,we have done everything right. The carrier works for you so use them for guidance and assistance.

PORK