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Wednesday, July 23, 2008

Excessive Sick Time

I have worked for a company in Northern California for over 5 years. We have a small inside sales force that is extremely busy and we are all exempt employees. We are paid on commission (after our salary is covered). The company policy does not have a sick time policy for exempt employees and everyone is good about it but one of our top sales people. When he is out we are expected to do the best we can to cover all of his clients. Everyone was good about it the first two years(things will change right?) and now are very fed up about it. It is costing us time and all the customers are getting upset.

We are in our 5th year of this person being out 2 to 5 weeks a year (more like 3 to 4) and it takes away from our work (and commission). We've had several managers but since this guy's sales numbers are giant they keep saying they're "monitoring" it. This person has a sense of entitlement, is always sick (doesn't take care of themselves) and thinks as long as they bring in a number it doesn't matter.

The managers seem to feel that California law "ties their hands" and they keep thinking it will go away. There have been other employees fired in the company for excessive absences so wouldn't this be a bit discriminatory based on this employee's excessive number of sick days? What type of recourse do we have besides not help this guys clients and make them all mad?

Now, now, let's not make the clients mad. That would be vindictive and biting the hand that feeds us all at once. While it seems like justifiable fun and would "wake up" management, it will reflect poorly upon you.

First and foremost, I have little experience with California's special laws. So, I'm going to pretend you live in Kansas instead. (I have NO experience with any special laws Kansas may have, but I did drive through Kansas once and saw Bob Dole's home town, so that makes me feel more confident about Kansas law.)

Your problem is not your co-worker. Repeat after me: "My co-worker is not my problem. My co-worker is not my problem. My co-worker is not my problem." See if you can get into a zen state while you say this. Now you can switch, "My problem is my work load. My problem is my work load."

Since you are commissioned sales people, if you are supporting clients for your ill co-worker, you should be reaping the rewards for his clients. Present that to your boss. And sit down and say, "When Bob's out of the office, I have to do x and y for his clients, which means I can't do x and y for my clients. How would you like me to handle this?" No whining about Bob. Just "how should we manage our workload."

Since Bob has such stellar sales numbers, I doubt your management really believes customers aren't happy. (Now, of course, they may be and one day they'll all just drop you company like a hot potato, and then where you will be?) As for Bob's excessive sick days--he may have an FMLA approved illness. He may even be approved for "intermittent" FMLA, which means he can takes days off as needed, rather than taking a 12 week chunk of time off. If he does have an FMLA covered condition, your manager's hands are tied. Since his performance when he is in the office is stellar, they would find it very difficult, legally, to fire him. And why would they want to?

Stop worrying about him and worry about your workload and your clients. I think it's fair to get compensated for the work you do for Bob's clients. Ask for it. But, remember, your problem is not your co-worker. It's your workload. Don't worry about him (and his unhealthy lifestyle). Solve your workload issues and ignore him.


Ron Ulrici said...

Evil HR Lady - I'm very impressed with your answer. You really aren't evil, are you?

I used to have a boss (GM of the Division) who used to go nuts about the failure of our Sales/Marketing Dept. to follow the rules regarding hours of work. As the HR Guru, I would remind him that they were constantly exceeding our sales goals and as long as they did this, I wasn't too worried about their work hours.

Infamous HR Guy said...

Excellent response. California does have some unique rules under CFRA regarding leaves. But in this instance CFRA/FMLA would be identical regarding medical leave.

Too often employees do not realize they can only control their own choices. It's not always an easy concept to understand. But as an employee we cannot control management, co-workers and subordinates choices. Only our own.

Anonymous said...

Aren't inside sales reps by definition non-exempt?

HR Wench said...

I hate to be the annoying HR person, but I am. Anon is right: INSIDE sales people are non-exempt.

Evil HR Lady said...

Anonymous and HR Wench, I can't believe I missed that! I know that. Duh. :>)

So, now there is another problem--they are being paid incorrectly!

Pom Freet said...

1. california does permit some inside sales commissioned employees to be "exempt" (under "wage order" 4 and 7, but not under the other california wage orders). see "Orders 4 and 7: Employees (except minors) whose earnings exceed one and one-half times the minimum wage and more than half their compensation represents commissions"

2. you might want to correct your mantra. you wrote: "My co-worker is not my problem. My co-worker is now my problem. My co-worker is not my problem." the second of your phrases uses the word NOW rather than NOT, which is sorta contrary to your intent (i infer).

Evil HR Lady said...

pom freet--thanks for the info and I fixed my typo.

HR Godess said...

Let's not forget that it depends on the duties, not just the title, as to how someone is classified. Since the rules changed, it's a huge pain to keep everything straight. I immediately thought the same thing initially (non exempt) but a quick read of my law book for refresher reminded me.

Great post and great information.

Wally Bock said...

I think the discussion of regulations is good and helpful, but the consultant in me cries out that there's a performance issue here. Absent a constraining regulation the boss needs to determine if sick-sales-rep is doing his job or not. My guess is not, but that there's no history of clear and reasonable expectations. Evil's suggestion of talking to the boss about managing workload can help get at this.

Mariaelena said...

in many cases when you share a workload for a client, you share a commission. I would modify HR Lady's statement to your Boss -

"When Bob's out of the office, I have to do x and y for his clients, x and y are $QQQQ in commissions. Since I am doing R% of the workload for the client I believe that I should get R% of this commission." If the Boss says no, then switch to the "I need to do x and y for my clients this week, so I will get to Bob's clients as soon as I handle x and y for my clients, since we are not sharing commissions, obviously my own clients have to come first.

Or something along the lines of Bob shares commissions or when he is absent his clients are low priority for others.

Corey J Feldman said...

I have to agree that it depends on the actual job duties. Sure if you are hocking cell phones at name that chain, I would most likely call non exempt. A lot of people would call sales recruiting, inside sales, but call it exempt.