FMLA - Equitable pay
NeedCoffee
595 Posts
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.
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.
Comments
If the employee is non-exempt, you need to make sure that your proposed new pay structure is in compliance with the Fair Labor Standards Act. For example, the employee would need to earn minimum wage. It's not clear to me from your post what kind of business you're in, but if the employee worked 40 hours in a week but only earned commission on ten items, the pay for that week would be $200 for 40 hours, which would be less than minimum wage and would therefore violate the FLSA.
I'm also concerned about the idea of changing the pay structure only for the employee who took FMLA leave. Just because you don't intend to retaliate doesn't mean a court can't find that your actions had a retaliatory or discriminatory effect.
Does the FLSA (or TX law for any of you Texas Forumites out there) allow withhholding of salary for non-exempt employee on FMLA leave?
I had just assumed that since he has a salaried component to his compensation, that annual salary would still be paid.
We haven't run into this before because everyone we've put on FML has been an hourly employee thusfar.
Take a look at 7-17 posting by nijel in nj under the HR & employment law section, Exempt & Missing Time. I think that thread may answer your question.