Q & A: Employee Transitions and Absences


Question Corner

Employee Transitions and Absences

By Jason R. Mau                      

Q: We have an employee who currently is salaried. We would like to move him to hourly. Can we do this at any time?

A: Yes, but I recommend you wait until you are comfortable that you and the employee understand all of the added overtime implications with the new classification and you are ready to accurately track the employee’s time and adjust any benefit calculations.  Further, you will want to keep a good record of the reclassification so that the change does not encourage the DOL to open an investigation for misclassification of employees down the line if it does not see a paper trail for this or other changes.   

Q: We recently had an employee return to work 12 weeks after delivering her baby. She is a nursing mother and is requesting an adjusted schedule. I know we must provide a room for lactation purposes, but do we have to grant the adjusted schedule?

A:  Section 7(r)(1) of the FLSA (Fair Labor Standards Act) does require employers to provide a place shielded from view and free from intrusion of others for nursing; it also requires a reasonable break time to “express breast milk for her nursing child” for one year after the birth.  While it does not require you to accommodate a complete adjustment to her schedule, you still must make a reasonable time available for nursing.  

Q: A recent hire has missed several workdays and comes in only sporadically. He claims to have a brain tumor, but he hasn’t provided any documentation regarding restrictions or accommodations. His absences are so frequent that it’s hurting production, and other employees have to pick up the slack. What recourse do we have? How can we verify if the employee is truly sick without violating any Health Insurance Portability and Accountability Act (HIPPA) rights?

A: Provided you are a covered employer and the employee is eligible for medical leave, under the Family and Medical Leave Act (“FLMA”) you are allowed to require the employee to obtain certification from a health care provider to support the absences for the claimed serious medical condition.  If he fails to provide it within 15 days, and you informed him at the time of the request for certification the consequences for not providing it, you may proceed with your normal discipline procedures.

Q: When an employee is consistently late, apart from giving him a verbal and/or written warning, is docking his paid time off (PTO) hours allowed?

A: As long as the employee is a non-exempt employee, and it is not contrary to your PTO policies or a collective bargaining agreement, you may deduct from his accrued PTO the time he is away from the office during the normal working hours.    

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.