Salaried EE want to make Hourly but.... Need HELP Fast

lnelson · November 2003

We have a salaried ee who is an estimator. He has been with us for
approx 1 1/2 yrs. Since his hire he has been disciplined both verbal and written by his supervisor regarding his work hours. He rarely works 40hrs a wk and is consistently late. Now the V.P wants to change his status to hourly making same wage as 40 hour salary but, he has just informed her that he is having medical issues that will have him out of the office intermittenly.

My questions are:
1) Can we change his status from salaried exempt to hourly non-exempt?
2) Because we now know of a medical issue does FMLA become a factor?
3) How should I handle this ee?

Any and all advice is greatly appreciated and anticipated.

Thanks,
Lisa

Don D · November 2003

>
>My questions are:
> 1) Can we change his status from salaried exempt to hourly
>non-exempt?

Yes, but only if the duties of the job do not meet the DOL FLSA test for exempt status. The status should be based on the particular job's duties. In this analysis, his 'attendance' and other behavioral issues are irrelevant.

2) Because we now know of a medical issue does FMLA become a factor?

Yes, anytime a medical issue is brought to the attention of HR, FMLA may become a factor. The employee does not have to raise his hand and alert you that he is requesting FMLA. You must evaluate the information you have and decide whether or not to give him the appropriate paperwork. If he is eligible and you think that a 'serious health condition' definition might be met, you should move forward with the paperwork. It may not turn out to be FMLA or he may not even qualify. But, you must consider the possibility and act accordingly.

> 3) How should I handle this ee?

Treat the attendance and reporting situations as disciplinary issues. You are allowed to establish a work starting time for exempts just as for non-exempts. If he cannot meet those standards, you have a disciplinary 'opportunity'. If he cannot conform to standards set by the company and insists on structuring his own work day, after applying your normal disciplinary policies, terminate him.
I suggest you not consider changing his status to non-exempt. That's not an appropriate way to deal with a disciplinary situation.

2406663 · November 2003

No, you can not change an employee from exempt to non-exempt.
First, look at their job description and compare with the DOL criteria for exempt and non exempt employees to determine that this indivdual is classified correctly. If they are classified correctly, they must remain in that classification.
For FMLA purposes, they must be notified that they could qualify for FMLA. If they are approved for FMLA, they cannot be disciplined for their lost time.

Hope this helps.

Don D · November 2003

>No, you can not change an employee from exempt to non-exempt.
>
It's done every day. Where do you get the notion that the status cannot be changed if the definition is not met?

HR in CA · November 2003

Do you have any other estimators? If not, there should not be an issue changing to hourly from exempt. However our attorney always cautions us to be prepared for the employee to submit an accounting of all the overtime 'worked' since the employee began as an exempt employee. We have yet to have this happen. We periodically review what exempt employees do and see if they should remain exempt or should they be reclassified as non-exempt.

As far as the FMLA issue, my opinion is you should be OK, he would have the same job at the same pay. However I have not had this issue come up before.

MS HR · November 2003

You can always change from exempt to non-exempt. You just can't do it from non-exempt to exempt unless the duties meet the exemption requirements 80% of the time. But in going from exempt to non-exempt you are also doing the same for all others with those duties and for in perpetuity if the duties never change.
Deal with the attendance as a discipline action and remember you can always require use of accumulated leave for absences from the office and you can always dock pay for certain other absences. Check the FLSA regs for deductions of pay from exempt employees.

System · November 2003

As others have said, you have several issues twisted together when they should be separate.

1. The ee isn't fulfilling a job duty (being at work when required) and is committing misconduct (tardiness). You can (and should) discipline exempt ees for this, but it seems your discipline isn't severe enough to get his attention. A one-week unpaid suspension might do the trick.

2. I checked with Anne Williams, the attorney who writes our Benefits & Compensation newsletters, and she said the law definitely allows you to switch him to non-exempt. You can make anyone non-exempt regardless of their duties. But this would be a REWARD for his poor performance, since he'd figure out how to goof off and earn OT in the same pay period. And you'd still need a manager with the guts to discipline him.

3. Don't treat him like FMLA unless he has a doctor's certification. Even if it's not FMLA, I'd require a doctor's note for recurring medical absences, given his poor attendance.

James Sokolowski
HRhero.com

San Francisco · November 2003

Okay, now I am really confused. I always thought that one's status was determined by ones duties - whether his/her duties met the exempt test or not. If one can be made non-exempt regardless of his/her duties, then what is the criteria to determine status? Thank you for clarification.

Elizabeth

Don D · November 2003

I think the suggestion that's being made is that the government doesn't care about changing an ee from exempt to non-exempt because that, in effect, offers them potentially more reward. But to do the opposite, is to milk more hours out of a worker for the same pay.

MS HR · November 2003

In as uncomplicated terms as possible, the federal government is concerned that you must always pay time and a half for overtime unless you can find a reason not to (i.e., find that the duties are exempt). Thus, if you want to pay everyone including your president or CEO time and a half the government could care less. But, if you decide not to pay time and a half for overtime, you better be able to show that the duties of the position are, indeed, exempt.
Compra'

blw · November 2003

Just think in terms of being exempt from "having" to pay overtime. It's fine to classify an exempt as non-exempt and pay them overtime if you choose to. You just can't classify a non-exempt as exempt when the duties don't match the definition, because you "have" to pay them overtime.

San Francisco · November 2003

Wow, thank you all for this info. I truly didn't know that! I thought exempt was exempt and non-exempt was non-exempt per duties performed. Thanks all for clarifying.

Elizabeth

MS HR · November 2003

you're very welcome!
Glad we could be of help.
Maybe someday you can do the same for us.

Hatchetman · November 2003

And don't forget the bit about the position or duties being classified as exmept or non-exempt, not the employee. So, if you deem the emplyee's position to be non-exempt, then wht you are saying is that all other estimators' duties are non-exempt.

San Francisco · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-05-03 AT 06:31PM (CST)[/font][p]MS HR, I'll sure try.

Elizabeth

lnelson · November 2003

Thank you for all your replies. I have spoken to our V.P and informed her it is ok to change status. He has been disciplined several times about his work schedule and I agree that putting him on hourly could cause him to over extend his hours. But currently he RARELY has 40hrs in a work week and we do not anticipate that to change in the near future. We will continue to progressively discipline until termination.
As far as FMLA I was told that the ee is not sure what he has they are testing and that is why he will be out of the office intermittenly. He has provided us with a schedule for Dr. appts w/out us asking for it.

One more question then I am done for the day, if we change his status to non-exempt would he be entitled to the OT hours he may have worked previous to the change?

Hatchetman · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-05-03 AT 07:32PM (CST)[/font][p]Only if you incorrectly classified him as exempt originally. If the position was correctly determined to be exempt originally, then he was not entitled to overtime. He may claim with your company and even file a complaint with your state DOL or USDOL claiiming unpaid overtime. But if you document your original determination establishing the exemption and the reason for the current change which have nothing to do with the duties, you should be okay.

Maybe I missed it, but I trust from your passing over the impact of such a change on other positions, that there are no other estimators.

Let me just add, though, make sure you run the change by legal counsel before implement to get "legal" okay.

lnelson · November 2003

Well I am still here so I will add that we have another estimator but he is the Supervisor and Project Mgr. His duties are very different from the ee in question.

MS HR · November 2003

>One more question then I am done for the day, if we change his status
>to non-exempt would he be entitled to the OT hours he may have worked
>previous to the change?

Don D · November 2003

And for the employee who says, "I'm exempt". Tell him, "No you're not, the position you currently occupy is. And for that reason, you're paid on an exempt basis." The exemption is not necessarily portable as most employees think.

lnelson · November 2003

Again, Thank you for your quick responses.
It has been very informative.

Lisa

Salaried EE want to make Hourly but.... Need HELP Fast

Comments