FMLA - Equitable pay

I have an employee out on intermittent FMLA. Actually, we've approved the request pending receipt of physician's certification. This employee has a history of abusing time off privileges. His current pay structure is salaried base pay plus commission. He is non-exempt.

Due to him being off randomly for his illness, it has put a strain on the department. When he first left for FMLA, changing his pay structure was discussed. Since he is still drawing his salary, he has no real incentive to come to work.

My question is this. Would it be a violation of FMLA rules to change his pay structure to one that has the potential for the same annual income, but without a salary component? Here's a hypothetical example:

Current set-up: $2000/mo salary, $10/item commission, averages 1000 items per month.

Proposed set-up: $0/mo salary, $20/item commission. In this set-up he would only have to do 600 items a month to make the same amount of money.

In the proposed set-up, he still has the potential to make the same money as on the old plan, he just doesn't have that base guarantee.

Is this unlawful? It's not retaliation or anything, its just putting a strain on the department, and management wants something done about it so that he's not getting paid for being on his couch.

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