Exempt to Non-Exempt

System

I have searched the forum and have found useful information but what I have read does not exactly fit my circumstances and hope some of you can help with your wisdom.

I have a Salary Exempt employee who has been somewhat of a challenge to my organization. He is fumbled and not really lived up to the standards of what he was hired to do.

In the mean time, I have had an employee who has had to go on FMLA with little chance of ever returning to work. Because the Exempt employee was knowledge and fully capable of handle the non-exempt hourly position vacated due to the sickness they have been put into that position. We realize there is NO need to ever refill the Exempt position and we need to take this Exempt employee to a Non-Exempt hourly position. The duties and responsiblities that are being performed by no standards would qualify this person to be classified as Exempt.

If the employee leaves we will replace the non-exempt position but if they decide to stay in that capacity they are performing the responsiblities. What guidelines can you help me with to ensure that we make this transition with legal bumbles.

The forum posted my J9JC has been helpful just need a little more specific information.

As always thanks for your help! I appreciate learning from the group.

System

>I have searched the forum and have found useful information but what I have
>read does not exactly fit my circumstances and hope some of you can help with
>your wisdom.
>
>I have a Salary Exempt employee who has been somewhat of a challenge to my
>organization. He is fumbled and not really lived up to the standards of what
>he was hired to do.
>
>In the mean time, I have had an employee who has had to go on FMLA with little
>chance of ever returning to work. Because the Exempt employee was knowledge
>and fully capable of handle the non-exempt hourly position vacated due to the
>sickness they have been put into that position. We realize there is NO need
>to ever refill the Exempt position and we need to take this Exempt employee to
>a Non-Exempt hourly position. The duties and responsiblities that are being
>performed by no standards would qualify this person to be classified as
>Exempt.
>
>If the employee leaves we will replace the non-exempt position but if they
>decide to stay in that capacity they are performing the responsiblities. What
>guidelines can you help me with to ensure that we make this transition with out
>legal bumbles.
>
>The forum posted my J9JC has been helpful just need a little more specific
>information.
>
>As always thanks for your help! I appreciate learning from the group.

stilldazed

Help me clarify:

EE A is salaried exempt and not performing well in exempt position; worthy of demotion
EE B is on FMLA LOA from a nonexempt position
You want to transfer EE A to EE B's position during the LOA period? Am I correct?

Are you a union environment, public or private employer, or are there any employment contracts in place?

Presuming you are private employer, non union environment, and there are no employee contracts:
1. Unless EE A asked for the transfer, your demotion/transfer is a disciplinary move and should be documented as such. Hopefully, you have adequate documents in place to cover the poor performance issue. Be prepared to withstand scrutiny in case there are allegations of discrimination, and ensure that you are following your company's policy for disciplinary demotions/transfer. If EE A asked for the transfer, get the request in writing.
2. If you have no plans to fill the exempt vacancy after transferring EE A, hopefully your decision to not fill the vacancy is based on the lack of need for the position. If your company doesn't need the position, you are technically laying off the exempt staff person but graciously allowing EE A to work in a currently vacant position due to EE B's absence. You should review RIF issues and ensure your lay off can stand up to potential scrutiny in case EE A alleges discrimination.
3. EE B may or may not return to work after FMLA, but your current decision must be based on the idea that EE B will return to work, unless EE B has told you otherwise. If EE B has expressed plans to not RTW, the FMLA protection has ended. If EE B has not made such an expression, you must work as if your presumption of EE B's future prognosis is not 'sealed' and thereby continue to reserve EE B's current nonexempt position (or a like position) in case EE B returns to work.

Are my assumptions correct? Does this help you out some?

Sort the issues and address each one separately before bringing them all together for an overall plan. You really do have multiple issues going on.

best wishes.

System

Your assumptions are pretty good. We are a private non-union facility. We will not be replacing the Exempt position anytime in the near future. It is currently filled by a 20 something college educated male. He will be stepping into a position that does not require a college degree and will be replacing a female.

If and when the female (very doubtful) that she will ever be able to return to work as her condition is pretty terminal we will find a place for her in the organization. He did not ask for a transfer to the position however, we are a small company it is understood that when there is a need in a department we wear many hats. He was told that in her absence that he would be handling her position. We trained him for a month prior to her departure so that he was fully capable in handling the responsibilities.

In having vacated his position, it has become very evident that he really was doing slim to no work and we have not missed a body or seen any issues as someone else picked up areas that he was handling.

We are going through with this transfer today at 3:00 pm (wish me luck) as I will be overseeing the conversation with the supervisor. I am not sure the supervisor will discuss the RIF issue at all but simply wants to say that this is the position that we currently have available. This is the new category and the wages that are to be earned.

If you or anyone else is reading and has input in this lack of statement please let me know. And as always thanks for your help!

davids

Unless the employee has a property right to the exempt position (as a public employee, through a union contract, etc.), you always have the right to transfer the employee into another position. Actually, even if you left the employee in his current position, you can change the duties. With any change of duties, you should always review the FLSA status of the position. If the change in duties warrants a revision in FLSA status, you can make that revision.