I have a salary paid HR manager. This person has missed the past two weeks of work with a very poor excuse. This person is expected to be paid. This person has only worked here for two months...
From Ohio
Answers (9)
Ray M
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Are he/she expecting it as vacation pay> sick pay?
Or does he/she expect to be paid the normal salary?
What's the employment history? were references checked?
With only 2 months on the job there probably isn't 2 weeks of vacation earned, yet.
I would have a very straight conversation and get to the bottom of the absence, and get a sense of the future employment of this person.
Has he/she been effective? productive? up to the absense?
Lots of questions.........
Jesse S
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Hi Lisa,
Thoroughly and thoughtfully address the issue with your employee. If you can't come to an understanding you will need to find a replacement.
Also, does your company have any guidelines about leaves of absence, personal days, sick days or the like? With most firms an employee has to have worked for a specified amount of time before accruing any of these benefits, otherwise it's unpaid leave. If you don't know the answers, you need to get them, and establish them.
Natalie W
Owner, Oberman Thompson & Segal
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I assume that this HR Manager is not eligible for vacation/sick pay. Even if he or she is absent due to a serious medical condition, FMLA does not kick in until 12 months of work and is unpaid anyway. I'm not sure why an HR Manager would expect to be paid under these circumstances, unless there is something I am missing here. Is he or she working from home?
I would consult your company's employment counsel for specific advice, but it seems to me that this is a very bad sign.
Sheilah E
Owner, ★SME Management:.......... Business Management and Accounting Consultant
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Much will depend on their employment contract, but just because they are salary does not mean they must be paid. This is especially true when they have no leave on the books and are most likely not even through their probation period.
Check with your local department of labor and also the employment contract, chances are high that you don't have to pay for this time off.
Sheilah
This answer discusses the the issues raised in the question generally. Readers must avoid considering this answer to be a substitute for legal advice. This answer, furthermore, creates no attorney-client relationship. Because the answer discusses the issues raised by the question in general, it may not apply to a particular individual legal or factual circumstance. The reader should neither take any action or avoid taking any action based on the information stated in this answer without first obtaining professional counsel. In addition, readers and should not send any confidential information to this answer's author without first communicating with him and receiving his explicit
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The employer apparently pays HR manager on a salary basis and pays no overtime to her or him. At many employers an HR manager qualifies for exempt (from overtime) status in accordance with the FLSA, because her or his duties meet the requirements of either the administrative or executive exemption from overtime. For either overtime exemption to apply, the employer must pay the HR manager on a salary basis.
The Department of Labor's regulations define the meaning of payment on a salary basis in 29 CFR sec. 541.602. In pertinent part, an employer must pay an exempt employee's salary to her or him in any work week in which the employee does any work, unless an exception applies. The regulations recognize an exception to the salary basis requirement, if the employee is absent for personal reasons, has either exhausted her or his paid sick leave or is otherwise ineligible for paid sick leave under the terms of the employer's paid sick leave plan, serves a disciplinary suspension without pay of less than a full work week for serious misconduct, works less than a full work week in the initial or terminal week of employment, or takes an unpaid FMLA leave. The salary basis test imposes no obligation to pay a salary to an employee that misses an entire work week.
An employer could obligate itself to pay an employee that misses work even for a poor excuse if it has an employment agreement with the employee that requires it to pay the employee's salary even if she or he misses work for the reasons stated or unconditionally. Assuming that the employer has no such agreement in this instance, if the employee has missed two full work weeks the salary basis test does not require the employer to pay any salary to the employee. If the employee worked at all during either, or both, work weeks, then the salary basis test obliges the employer to pay the full salary to the employer unless one of the exceptions applies.
For example, assume the employer has a paid sick leave policy. If the policy required employees to complete 90 days of employment before they were eligible for paid sick leave, then the employee in question would be ineligible for paid sick leave. If she or he worked only a partial work week, then the employer need only pay the employee his prorated salary for the number of days on which she or he actually worked during that work week.
The FMLA exception to the salary basis test would not apply in this instance. The employee's two months of employment means that she or he is not yet eligible for FMLA leave. Although some states have laws similar to the FMLA, Ohio is not one of them.
The application of the salary basis test to this employee could require either the payment of the full salary to the HR manager or only a prorated salary for the actual days on which she or he worked. If the "very poor excuse" was a personal reason, then the employer need not pay the employee her or his full salary. If the excuse was the employee's illness and the employer has no paid sick leave policy, then the employee must receive her or his full salary for any work week in which she or he did any work. Before deciding how to pay the employee, you should consult a lawyer knowledgeable about FLSA issues.
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Stephanie O
Senior Technical Program Manager
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In addition to Gerald's answer, please consider that in most cases, an employee handbook or HR manual would cover this type of basic issue in a way that both employee and employer's rep can understand. If you do not have such documents, I recommend getting professional assistance to create them. It costs a few $$$ but will save many more down the road.
Joy M
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Is there a state agency that can tell you your legal position?
If they are expecting to be paid, you might offer them severance pay!
Terri L M
Planning and Strategies Consultant; speaker, trainer, author.
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Lisa:
If this person has only been with you for two months, any chance they are on a 'probationary' status of three or six months? If that is the case, I'd have a serious discussion with him/her about their having been hired as a full time employee, expected to be at the office during the company's working hours. If you don't see a serious change in attitude and attendance at work, get rid of them ASAP and find someone responsible who can do the job for you.
Also, do you have a policy manual that all new employees must read and sign that outlines what time away from the office/days off/sick leave/vacation are, and how other absenses will be treated?
Anyone away from the office for that length of time under the auspices of being 'sick' should have to get something in writing from a physican. It doesn't normally take that long to get over a common cold or the flu.
David B
HR Attorney For Management. . . Seattle SHRM Legislative Director
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Hi Lisa,
Gerald's answer covers the legal aspects very well. Two additional points.
First, I just wanted to stress the importance of seeking counsel before making a decision. If the employee did ANY work at all (even from home without your permission) during the defined workweek, then failing to pay the employee's salary for that workweek is likely to jeopardize the salary basis component of any applicable overtime exemption under the FLSA and state law.
Second, one person mentioned the importance of looking at the employee handbook. The importance of handbooks & policies is that they establish standards that help employers to avoid arbitrary and capricious employee management that could be construed as illicit discrimination if one or more of the employees involved is coincidentally a member of a class protected by state or federal civil rights statutes. Even if there is no "official" policy in place that addresses payment of salaried employees in such situations, a well-advised employer would inquire into the past treatment of other employees in similar situations. If payment has been allowed before for a person not in a protected class (say a Caucasian male) and the current employee is in a protected class (say female or non-Caucasian, etc) then the employee has the beginnings of a prima facie discrimination case under Title VII and/or state law. As Gerald said, make sure you run the decision and facts by local employment law counsel.
Best of luck.
