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Current Questions:
(View archived questions with link on right side of the page)

Source of questions:  These questions were provided by HR seminar attendees between 2008 and 2013.

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What legal reasons and steps are there to letting an employee go?

O
ne of the areas where companies tend do see law suits is in the area of wrongful terminations.  Although most states, including New York,  are "at will" states this doesn't give an employer license to terminate an employee without ensuring that proper procedures are followed.

To answer the first part of the question: an employer needs to make sure that the termination is being based on non-discriminatory grounds, such as actual job performance or a violation of written or stated company policy.  Terminating an employee for not being a good "culture fit" or "job fit" may also be considered a non-discriminatory reason.  However, in the absence of a legitimate or valid reason, If the employee can show cause that seems discriminatory in nature, the employer can be  liable for wrongful termination.  Of course, the employee's counsel will try and show that discrimination was intentional even if the employer's decision to terminate was purely non-discriminatory.  Therefore, it makes sense to pay attention to the termination to ensure that proper care is taken in the termination process.

My advice is to not go it alone.  If you do not have qualified HR staff contact an HR professional who can help you determine how to proceed.  If you have retained the services of a third party provider, you should work with them closely to follow the steps they suggest.  The HR professional may advise you to contact an attorney, especially if the termination may not be a clear cut termination and other extenuating circumstance also exist.

In any event, if you are terminating someone for performance, you need to make sure there is enough documented information so that the employee being let go is not in for any surprises.  I have often heard a company say, "well, he knew it was coming..."  However, the company never sat the employee down and had a discussion about his performance  If you give an employee a reason for termination, there should be enough documentation to substantiate the action taken by the company.  If the employee is being terminated for violating company policy, you need to make sure that your company has a written policy and the employee is aware of the policy.  In addition, you need to make sure you are treating this employee the same way previous employees who either had performance issues and did not correct or violated company policy were treated.  If this employee is being treated differently from the others, what is the reason for this difference in treatment?  Is it because the policy is new and newly communicated, or is a new performance evaluation process just been implemented and therefore, your company has a more defined process to follow?

It is clear to see that there are many considerations that a company has to make when taking an action such as termination.  It is always best practice to get a professional involved before the first step so that the entire process is done correctly.

Please contact Lena Bodin at 845-362-3445 or lena@4prs.com with questions.

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Can you please explain the new mandatory new hire procedures in New York State?

This is an excellent question since it affects every employer in New York State regardless of the size of their workforce.

Effective October 26, 2009, the New York State Legislature amended the NY Labor Law which places additional burden of compliance on employers. Simply put, in addition to notifying new hires of their rate of pay and pay day, employers will now be required to notify eligible new hires of their overtime rate. Further, this notification must now be in writing and the employer must obtain an acknowledgement of receipt of this notification from the new hire.

Employers should update their offer letters to reflect the changes.  If you already have an offer letter make sure it has the rate of pay, overtime rate for all non-exempt employees, and their regular payday and frequency of pay and a signature line for the employee to sign on acknowledging receipt of the required notification.  It is also a good idea to have 2 originals, one for your personnel files and one for the employee’s record.

There is a form available on the Department of Labor website that you may wish to use at the following link.  It is not a mandatory form.  However, if you currently don't use offer letters, this form will save you time.

 Notice & Acknowledgement of Wage Rate and Designated Payday - LS 52

Please contact Lena Bodin at 845-362-3445 or
lena@4prs.com with questions.

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If a position is exempt and an employee is asked to work outside of the regular scheduled work week are they to be compensated? And, if so, how?

I usually get a lot of questions around compensation for exempt employees when they work more than their usual working hours.

If an exempt employee has a normal working week of lets say 40 hours and has a salary that goes along with that number of hours, they are not required to be compensated for any hours worked in excess of the 40 hours. Thereby the term exemption – they are exempt for overtime pay, meaning pay for hours over the 40 hours. There is not federal or state requirement that they be paid for hours worked in excess of 40 hours.  Same applies to an exempt employee hired to work any hours less than 40 hours and being asked to work more than the hours agreed to. For example, if an exempt employee is hired to work 30 hours a week and they consistently work 40 hours a week, there is no law requiring that their pay be adjusted. The concept is that exempt individuals are paid for the work completed and not necessarily how long it takes them to do the work.

So, what happens if an exempt employee is required to work hours outside of their normal working hours, let’s say on a Saturday? Although the company isn’t required to pay them any additional monies since it doesn’t violate any labor laws, a company may opt to compensate the employee for the additional hours worked as an incentive, sometimes called “premium pay” or “comp pay” for him/her to work the additional hours. This is usually the case when individuals can volunteer for additional hours, such as working holidays or weekends, or being on call overnight. In cases where employees may be required to work additional hours on an on-going basis as part of the job requirement, the salary paid may already take that into consideration. If this is the case, it is a good idea and good business practice for the company to clearly communicate this to the employee at the time of hire or time of assignment to that position and to have this information recorded in the personnel file or payroll file. This way if the employee no longer works those hours either voluntarily or based on company need, the salary can be adjusted downward by the amount of the “premium” pay the employee was receiving for working the additional hours.  For exempt positions, you should keep in mind that there should be some pay equity and consistency in pay.  If all employees in the same job, with all else being equal, are making “x” dollars as a fixed salary, then the individual who works an additional day or hours could be paid “x+” for their work and not create any wage and hour issues.

One thing to remember is that when you calculate the premium pay, it should not directly correlate to their hourly wage since this may risk the employee being considered a non-exempt employee, in which case they become eligible for overtime at a rate of one-and one-half times their regular pay rate.

The most important thing to remember when you are having an employee work over 40 hours during any one work week is to make sure that they are not misclassified as an exempt employee when their job duties clearly show they should be classified as non-exempt and therefore eligible to overtime pay and not premium pay. It is very easy to misclassify an employee as an exempt and so care should be taken to closely evaluate the employee’s job duties and make sure their classification is done correctly.

Please contact Lena Bodin at 845-362-3445 or
lena@4prs.com with questions.

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