Retaliation and abuse of power questions (IT worker - Florida)

HRstudies

 

I have several dilemmas that I would appreciate your help
with. This is about the case of a senior IT employee at a mid-size (50+
employees) corporation in Florida:

 

1) The employee is receiving excessive write-ups and
complaints by her supervisor after she raised a concern that she was
misclassified as exempt under FLSA and asked for overtime wages.

2) These complaints are distributed among several
individuals at the company, including the owners and partners who are not
direct supervisors or part of the HR department.

3) The employee is frequently asked to perform personal
errands for her bosses or her bosses' family, girlfriends, friends, etc, (for
example, fixing their personal computers and networks).

4) She was written up for a day during which: she took 3
hours off but worked between 7 am and 2:30 pm, and 5:30 pm -12 am. The
employee notified the HR department about the 3-hr absence (2:30-5:30 pm) and they forwarded
the notice to the employee's supervisor by email. The supervisor is writing her
up for not informing him directly. The company doesn't specify who to notify in
the event of absence. The employee had sufficient sick and vacation leave
accrued to cover the 3 hours. Additionally, this was a regular work day, not a double shift. The employee regularly works multiple additional hours on weekends, and before and after business hours.

5) The company's owners requested work from the employee
during her vacation, which she performed, and the company did not refund the
hours to her accrued vacation bank.

6) The company is considering eliminating the employee's
position and outsourcing her job as a way to get rid of her. This seems to be a
regular practice. On at least 3 other occasions, the company laid off personnel
by announcing a position redundancy and then shortly thereafter, renamed the
position (with essentially the same duties) and hired someone new.

 

What options does this IT employee have? Does the employer's
behavior qualify as retaliation, abuse of power, or other actionable conduct? Your
advice will be much appreciated.

 

Thank you very much!

TXHRGuy

Too many pronouns, need some clarification: 

[quote user="HRstudies"]1) The employee is receiving excessive write-ups and complaints by her supervisor after she raised a concern that she was misclassified as exempt under FLSA and asked for overtime wages. [/quote]

[quote user="HRstudies"]2) These complaints are distributed among several individuals at the company, including the owners and partners who are not direct supervisors or part of the HR department. [/quote] 

This sounds like we have two female employees, one of whom supervises the other.  Alternatively, the supervisor's gender is unknown.  I'll take a stab and guess that the non-supervisory employee is female and she is getting written reprimands issued to her and complaints about her to higher management and/or peers and these performance concerns did not arise until after the classification issue was raised.  Correct?

Side note: people skip HR all the time in small companies and owners need to be trained.  In any event, it's hard to chastise someone for informing the owner about events at his or her place of business.

[quote user="HRstudies"]3) The employee is frequently asked to perform personal errands for her bosses or her bosses' family, girlfriends, friends, etc, (for example, fixing their personal computers and networks). [/quote]

The boss is the supervisor of unknown gender discussed above?  Are these "personal errands" handled on-site or at people's homes?

[quote user="HRstudies"]4) She was written up for a day during which: she took 3 hours off but worked between 7 am and 2:30 pm, and 5:30 pm -12 am. The employee notified the HR department about the 3-hr absence (2:30-5:30 pm) and they forwarded the notice to the employee's supervisor by email. The supervisor is writing her up for not informing him directly. The company doesn't specify who to notify in the event of absence. The employee had sufficient sick and vacation leave accrued to cover the 3 hours. Additionally, this was a regular work day, not a double shift. The employee regularly works multiple additional hours on weekends, and before and after business hours. [/quote]

I'm pretty sure that it is naught to charge the sick time if they also worked.  A low level warning specifying that the supervisor wishes to be informe directly is not out of line if that's how the supervisor wants the department run.  Just be sure everyone else gets the same warning and that this procedure is documented and employees under that supervisor are informed.  Either that or tell the supervisor that the warning is unauthorized and he or she may not execute it, if you have such authority.  If you have no authority, time to talk to the owner about the role of HR in the business.  Do you have official capacity to perform employee relations duties?

[quote user="HRstudies"]5) The company's owners requested work from the employee during her vacation, which she performed, and the company did not refund the hours to her accrued vacation bank.[/quote]

That would be a violation of federal law.<?xml:namespace prefix = o />

[quote user="HRstudies"]6) The company is considering eliminating the employee's position and outsourcing her job as a way to get rid of her. This seems to be a regular practice. On at least 3 other occasions, the company laid off personnel by announcing a position redundancy and then shortly thereafter, renamed the position (with essentially the same duties) and hired someone new.[/quote]

That can be a source of heartache later, particularly under civil rights. 

[quote user="HRstudies"]What options does this IT employee have? Does the employer's behavior qualify as retaliation, abuse of power, or other actionable conduct? Your advice will be much appreciated. [/quote]

Employers can't really "abuse" the power they have but that doesn't mean that their decisions and actions cannot be tested legally.  If I were the HR person in this situation, I would be concerned about retaliation in this specific case but I'd also want to look a lot deeper into this practice of laying people off and replacing them with people who do the same thing.  That's generally frowned upon.  Companies that take the easy way out of firing people generally have no idea how much trouble they are making for themselves.  The appearance that the cause of termination is something they need to hide by doing something slick instead of going through the effort of severing the relationship properly.