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Question:
If an employee puts in their notice, can we let them go that day instead of keeping them for the full notice period?
Answer from Celine, SHRM-CP:
 
Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee’s resignation early. 

First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work. 

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy. 

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work. 

 
With eight years of customer service experience under her belt, Céline is proud to bring her healthcare and food service expertise to the team. She’s fluent in French and proficient in Spanish, making her nearly trilingual. Céline serves on the board of a non-profit that organizes a citywide music festival. She loves spending her time exploring the outdoors, playing with her nieces and nephews, and cooking.
Question:
How do we calculate whether we’re covered under FMLA?
Answer from Margaret, PHR, SHRM-CP:
 
To be covered under FMLA, private sector employers need to employ 50 or more employees for at least 20 calendar workweeks in the current or preceding calendar year. The 20 calendar workweeks do not need to be consecutive. 

When counting your employees, you would include any employee whose name appears on your payroll any working day of calendar week, regardless of whether they received compensation for the week. 

Once your organization meets the 50 employees-for-20 workweeks threshold, it remains covered until it reaches a point at which it no longer employed 50 employees for 20 (non-consecutive) workweeks in the current and preceding calendar year.

 
Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.
Question:
We have good reason to suspect an employee has been stealing from the register. How should we respond?
Answer from Angela, PHR:
 
I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.

An internal investigation generally includes interviewing any employee who may be involved and any potential witnesses about what they saw . You’re looking for firsthand knowledge, not rumors or speculation. If you have video surveillance, it should be included in your investigation file. Even if the accused employee fails to cooperate, you should still investigate as best you can and document your good faith efforts.

During the interviews, ask the employees for general information about what they know or what they saw. Formulating questions in advance helps ensure that your investigation remains unbiased and open-ended. When interviewing co-workers, be sure not to disclose which employee you suspect of stealing. 

These interviews should be confidential to the extent reasonable and conducted in a discreet manner. It’s also good to have a manager or HR Representative in the interviews to serve as a third-party witness and take detailed notes. This documentation may prove helpful if the company is ever challenged regarding this situation and its outcome. 

If the results of the investigation reveal that an employee did in fact engage in theft, you may opt to terminate the employee. 

 
Angela has extensive experience in HR, conflict management and employee relations. She spent several years working as a high volume (and full cycle) recruiter for a large multi-channel retailer. Angela earned her B.A. in English Literature and Criminology from the University of South Florida. and also holds a paralegal certification from Saint Petersburg College.
Question:
Some managers have been continually talking about politics in the office, not taking into consideration anyone else’s political backgrounds and beliefs. It gets offensive at times, but employees are afraid to say anything. Any advice on how this can be handled?
Answer from Emily, PHR:
 
In general, a private employer can limit political expression in the workplace—provided they don’t run afoul of protected Section 7 rights or applicable state laws. Section 7 of the National Labor Relations Act gives non-supervisory employees the right to talk about the terms and conditions of their employment and the right to unionize. While this law protects some political activities, it doesn’t give employees the right to discuss politics that aren’t work-related during work hours. You therefore can limit political speech and associated conduct that is not work-related.

As a rule, it is important to focus on workplace behavior and not on limiting the beliefs or off-work activities of employees. I recommend having a policy that focuses on job performance rather than political discussions specifically. If an employee spends too much time engaged in “extra office chat,” regardless of the topic, I’d presume that they are not performing their position to your expectations, or that they may be significantly distracting their co-workers. 

As for how to specifically deal with this situation, I would recommend meeting privately with the managers involved and discussing with them how their comments are affecting the team. I would make it clear that you’re in no way interested in limiting their political actions outside of work, but that it’s important in the office to consider diverse views. Managers are held to a higher standard and should not be saying things that make subordinates feel uncomfortable.

 
Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.
Question:
We have an employee claiming they shouldn’t be classified as exempt from overtime. If it turns out they’re right, what are the penalties for misclassification?
Answer from Kara, JD, SPHR:
 
The cost of misclassification will depend on several factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, how the misclassification is discovered, and how your employees react to it. 

Generally, if an employee goes to the federal Department of Labor and says they have been misclassified, the DOL will investigate, and they will very likely look at all your employee classifications. Any employee who the DOL determines should have been paid overtime in the last two years will be found to have been underpaid, and the organization will owe that money to the employee now (or three years’ worth if the misclassification is found to be “willful”). The organization will also owe them liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization will owe them $4,000. The organization will also owe taxes on those wages and interest on those taxes. 

Additionally, many states have their own overtime laws, and in most cases the organization can be held liable under both federal and state law, meaning not only would the employee be owed double under the FLSA, but also any liquidated damages under state law (which could easily triple the original amount). And if you are in a state with late payment penalties, you could owe up to 30 days’ worth of the employee’s pay on top of the already discussed damages. There’s also a very good chance that the organization will be held liable for any related attorney’s fees – both your own and the employee’s.

Finally, there are potential federal civil penalties of $1,894 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. As soon as judgment is rendered in favor of the employee, statutory interest will begin to accrue on the amount owed – generally 10% per year.

The costs associated with misclassification are steep. But we can help! The HR Support Center is chock full of guides and trainings that can help you ensure that all your employees are properly classified. Start by checking out our 2-Minute HR Trainings on the White Collar Exemptions, which are the most widely used among our clientele.

 
Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.
Question:

We want to terminate an employee who doesn’t fit with our culture. Can we do this? Do you foresee any issues?

Answer from Kyle, PHR:
 
First things first, check your policies and any correspondence (like an offer letter) that have been given to the employee to ensure that you have established an at-will employment relationship. Most employers state that employment is at-will, meaning an employee can be terminated at any time, with or without notice, and with or without cause, for any reason not prohibited by law. If an at-will employment relationship exists, you may terminate the employee for not fitting in with your culture, but there are certainly some things to consider beforehand.

Terminated employees sometimes challenge their employer’s decision to terminate them, alleging discrimination or some other unlawful employment practice. Your best defense is to be able to provide documented reasons for every termination and demonstrate good-faith efforts on your end to help the employee improve. Simply saying the employee didn’t fit with your culture doesn’t provide much information or do anything to counter a claim that the termination was unlawful. 

Therefore, think about what you mean when you say the employee doesn’t fit with your culture. If your expectations are clearly established and you can point to specific behaviors of the employee that did not meet those expectations, you may have a solid case for termination. You should also be able to show that you gave the employee a chance to improve and that you would terminate any employee under the same circumstances. In other words, you should be able to demonstrate whether an employee fits with your culture and show that the consequences for not fitting with the culture are the same for everyone. Documentation is key. If you haven’t done these things, I would not recommend termination. 

 
Kyle joined us after six years of freelance writing and editing. He has worked with book publishers, educational institutions, magazines, news and opinion websites, successful business leaders, and non-profit organizations. His book, a memoir about grief and hope, was published by Loyola Press in 2013.
Question:
Can we require exempt employees to clock in and out?
Answer from Aimee, GPHR, SHRM-SCP:
 
While it doesn’t violate the FLSA to have an exempt employee clock in and out, I recommend only tracking exempt hours if there is a business reason to do so. There are some valid reasons for tracking exempt employee hours. For example, an employer may opt to track an exempt employee’s hours for purposes of client billing, grant tracking, Family Medical Leave Act (FMLA), 401(k), or hours-based benefits calculations such as vacation accrual. That said, exempt employees are paid to do a job, not necessarily to work a required number of hours. As a general rule, I recommend focusing on whether the job is getting done instead of attempting to track amount of time spent in the office. 

While you may choose to track the hours of exempt employees, please ensure the information is not used to take deductions from an employee’s regular salary, unless such deductions are allowable under both state and federal law. An exempt employee’s salary should not fluctuate based on the number of hours worked within the workweek. Prorating an exempt employee’s salary based on hours worked may result in the loss of the exemption.

 
Aimee is a recognized leader in the field of Human Resources. Aimee was previously the Global Director for the Board of Directors of the local chapter of the Society for Human Resource Management. Previously, she was the HR Director and Global HR and Organizational Effectiveness Adviser for an international humanitarian relief and development organization, and worked as an HR consultant to small and mid-sized companies.
Question:
What is the technical or otherwise common definition of an employee’s termination date? Is it the date the on which the termination occurs or the last date the employee performed work?
Answer from Monica, SPHR, SHRM-CP:
 
Typically, the termination date is the day that the actual termination occurred. It may or may not coincide with the final day of work, depending on the circumstances. 

For example, many companies have a no-call, no-show provision in their attendance policy (e.g., three days of no-call, no-show will result in termination), after which an employee is terminated based on job abandonment. In such a scenario, the date of termination is after the third day of no-call, no-show, which does not coincide with the employee’s last day of work. Alternatively, the employer or employee may give advance notice, as is often the case when employees are simply moving on in their career or the employer is conducting a layoff. In that case, the termination date is the employee’s final day of work. 

If an employee files for unemployment, the unemployment agency may request both the employee’s last date of work and the termination date. If this request isn’t made and the termination day and last work day are not the same, we still recommend providing both dates in response to the unemployment claim. 

 
 
Monica has held roles as an HR Generalist and Payroll and Benefits manager at a large ski resort, providing HR guidance to more than 500 employees. She also has HR experience in the healthcare field and the non-profit world. Monica holds a Bachelor of Science degree from Linfield College.
Question:
We have an employee who has an illness covered by the Americans with Disability Act. The employee provided us with a letter from her doctor stating that she needs to be able to work from home 2 to 3 days per week. This employee is a Team Lead and we need her to be in the office each day supervising her team.

Would it be reasonable to demote her, change her to part-time status, and only pay for the hours she works in our office?

Answer from Jenny, SPHR, SHRM-SCP:
 
The Americans with Disabilities Act (ADA) requires that you engage with employees in an “interactive process” to determine what is reasonable accommodation. However, you certainly are not required to allow her to work from home in her current capacity if it such an accommodation would be unreasonable.

It is permissible to reduce an employee’s work schedule and pay to accommodate a disability. You’ll want to be more careful about a “demotion.” Can she still manage the few days a week she’s in the office? If so, you should consider whether a demotion is necessary, as it could certainly appear discriminatory.

If allowing her to work in her current capacity as a part-time employee is not feasible, a demotion may be reasonable. In that case, if she is an exempt employee currently, you should come up with a fair hourly rate of pay in line with the nature of the work that she will be performing and temporarily transfer her to a part-time, non-exempt position. Just keep in mind that if she’s non-exempt, you’ll need to pay her for all time worked, even if she’s not in the office. And she will be an overtime-eligible employee.

Before you decide what to do, you and the employee’s manager should sit down with her in an interactive process meeting. In that meeting, you can explain why working from home in her current capacity is not feasible and brainstorm other options with her. It’s important not to make any commitments in the meeting. Rather, it should be a time when both you and the employee suggest effective accommodations.

After your interactive process meeting, you should meet with her manager to discuss what options are the most viable. It’s important to consider the employee’s preferences, but this certainly isn’t the only consideration when making your decision. Do keep in mind, however, that “reasonable accommodation” under the ADA should be interpreted broadly.

 
Over her 15 years of experience, Jenny has specialized in helping small to mid-sized businesses across a variety of industries reduce their risks and manage employee relationship issues. Jenny holds a Bachelors of Business Administration (BBA) degree in Human Resources Management from the University of Georgia and a Masters of Business Administration (MBA) degree with a concentration in Human Resources Management from Georgia State University.
Question:
What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance?
Answer from Emily, PHR:
 
The use of a performance improvement plan (PIP) can help reduce the risk inherent in any termination. A PIP is used to help employees whose performance has slipped, become inconsistent, or otherwise needs improvement.

It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination. If you’re terminating for poor performance, this documentation should include past warnings for poor performance, explanations of the consequences for the employee if they didn’t improve, and evidence that the employee failed to do so.

A great way to do all this is with a PIP, which specifies your expectations for employee performance, defines what success looks like going forward, sets regular meetings with the employee to discuss their progress, and explains the consequences for failing to meet and sustain improved performance within an established timeframe.

If the employee continues to underperform or fails to sustain improved performance, you may need to move on to termination. If you’ve been using a PIP, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for a termination.

 
Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.