SR: FMLA and Non-FMLA Leave Mixed

I have an employee who, in the past few months, has had to take leave without pay several times because she has exceeded the sick and vacation time she earns. Some of that time has been FML and documented with our HR office, but not all of it, in fact not most of it. After it seemed like she was taking Leave Without Pay (LWOP) consistently (3 months in a row), I had a talk with her about her absences. Only after that discussion did she go to HR and began with the FML documentation, since some of the time she was out was due to her daughter getting tubes in her ears. Things calmed down and there were several months she didn't exceed her time earned, but this month she is over again. None of the time this month has been filed on FMLA with HR.

My question is, during her annual performance evaluation, can I mention attendance as a problem and give her a lower rating than last year? Or should I not mention it because some of the time was FMLA?

I'm not a lawyer, nor do I play one on the internet, but this is really tricky and complicated. Some guy just won a court case where he didn't ask for FMLA but the court said the company should have offered it to him. (My Google skills failed me and I can't find it, but it was a pharma sales exec and I want to say Virginia--someone help!) So, urgh.

Technically, you can hold non-FMLA time against people but not FMLA time and what becomes tricky here is that she may have taken days that would have been FMLA eligible if she had only asked for it, but since asking for it might not even be a requirement, I'd probably go over her absenteeism with a fine tooth comb and credit any day that could have been FMLA eligible towards FMLA. Then I'd bring up the other absences as part of her performance appraisal.

I don't know how that would pan out, because it's going to be really hard to say, "You're not in trouble for missing these days, but you are in trouble for missing those days.

Thoughts?

My HR Manager is a Nightmare

What do you do when your HR manager hates you and prevents you from moving forward with your career? First, stop blaming her. Evil HR Lady tells you why.



My HR Manager is a Nightmare

Photo by Geishaboy500, Flickr cc 2.0

SR: 2 Pay Questions and an Unemployment Problem

I have a salaried employee that would like to take a month of unpaid leave to go visit his family in Poland. We get paid the last day of the month. His leave comes in the middle of two months. Can I just pay him an hourly rate for the days he did work in those months?

I would take the monthly pay and divide it by the number of working days in that month and then multiply that by the number of days he worked. So for instance, $5000 monthly salary/22 business days=$227.27 per day. He works 10 days this month, so paycheck is $2272.72

My husband works in a heavy truck dealers parts room in Massachusetts. When hired, he was quoted an annual salary figure - that would be made up of a weekly salary amount and a monthly bonus. The bonus is made up from departmental sales figures and is usual in this industry.

He and the other employees are scheduled to work 9.5 hours everyday - 1/2 hour of this is an unpaid lunch. They are required to work 1 Saturday per month -- which up until very recently was for no extra pay…for some reason (unknown to employees) the employer decided to let them have one day off in the week, when they work on Saturday. Also, once a year, they must work an extra two days to complete the departments inventory, they get no extra pay or time off for this.

The question he has is that his employer seems to believe that because he receives Salary & Bonus, he is an Exempt employee and not entitled to overtime - over 40hrs. The employer also deducts time if he leaves a little early in a given day…not usual for exempt employees correct?

I do not believe that his job classification falls into any exempt category that I can find listed. He stands at the counter and take phone and retail orders for truck parts. His major concern is that if the employees bring this up to the employer or make a legal complaint, they will just be put on the time clock and not receive bonuses…any idea if this is legal?

I won't make a judgment on someone's exempt/non-exempt status, but the boss can't have it both ways. He can't pay a salary and then deduct pay from it for time off. Non-exempt employees can receive bonuses, so that's not the issue. I'd make a call to the local Department of Labor and ask for advice.

Of course, there are risks (as you know) so if it's otherwise working out, you could also let it go.

I am in a bit of a pickle. I left my former employer about year ago after they were having some financial difficulties and were having trouble paying people. (I believe I quit with good cause.) I moved back home to live with my parents and save up some money. The company considered me to be an independent contractor, but after reading about the criteria of independent contractor vs. employee, I think I was an employee. (They determined my rate of pay, they told me when to come in, I did the work to their specifications, I had no written contract that had a start and end date.) After I left the company, I tried reaching out to them to find out when I would be receiving my checks. They never responded. Time passed and I was having difficulty finding a job, even in retail and I had bills coming in. I briefly filed for unemployment, until I could find work. Shortly thereafter, they tried to dispute my unemployment. I argued my case and the state sided with me.

Fast forward to nearly a year later, they have requested a hearing to stop my unemployment eligibility (mind you I have not filed in a year.) After reading the information that they provided to the state, I realized that they lied. What is my next step?

It is coming down to my word versus theirs. During the hearing, I could request by way of subpoena that they provide my time sheets and other documentation to prove that I was an employee and not an independent contractor, but I have a strong suspicion (after seeing what they have done in the past) that they will destroy those documents. What do I do next? Do I try to fight them? Do I pay back the funds? Do I just give up? What is my next step?

I hate to admit it,but I have no idea. You might want to contact a lawyer who specializes in this sort of thing, but make sure you ask about costs first.

Since the state sided with you in the first go-round you might be well situated to win the second go-round. I'm not sure. I've always worked for honest companies.

Sorry I'm not much help.

Short Responses

I'm a big advice column fan--that's why I started writing one. My sister is as well and we were chatting about how we both read Dear Abby every day even though we both think she's not all that bright. I confessed, "Most of the time I just read the questions and skip her answers."

And then it occurred to me that some of you might enjoy the questions here more than the answers. (Although, you should enjoy the answers more than the questions because they are written by meeeeee!!!!!) Anyway, I frequently get questions that I reply to quickly with one or two lines and don't turn into a full fledged post for whatever reason.

I thought that from time to time I'd post some of these "short response" questions and answers. Feel free to give the question writer your opinion as well. My next post will be a couple or more of these short answers.

My Boss Won't Let Me Do My Job

What do you do when you're hired into a new function, but your boss won't let you do that function? Here are 10 steps to helping your boss see your value.

My Boss Won't Let Me Do My Job

Should I Call the Recruiter?

You submitted an application and no one's said anything to you yet. Is calling the recruiter a good idea, or should you just wait it out?


Should I Call the Recruiter?

Photo by Nicholas_T, Flickr cc 2.0

Stop! 5 Reasons Not to Touch That 401k

Thinking about taking out a 401k Loan? Just stop. Even though that 401k balance can be a temptation, stay away from it. BNET's Evil HR Lady tells you why.

Stop! 5 Reasons Not to Touch That 401k

Why Do I Have to go to Mandatory Counseling

Sometimes policies are just ridiculous, but as long as they are relatively harmless, just grin and bear it. Even if it involves a mandatory counseling session. Here's why.

Why Do I Have to go to Mandatory Counseling?

Photo by Joe Houghton, Flickr cc 2.0

Are You Trying To Make Your Employees' Lives MIserable?

White uniforms for people who deal with bodily fluid all day? What other things do managers do that make their employees lives miserable?

Are You Trying to Make Your Employees' Lives Miserable?

Exempt vs Non-exempt: Does My Status Change if I'm Handing Out Name Tags?

Handing out name tags certainly doesn't require creative, independent or managerial skills. So, does your status change to non-exempt when you're working the desk at a convention?

Exempt vs Non-exempt: Does My Status Change if I'm Handing Out Name Tags?

Photo by Richard Moross, Flickr cc 2.0

My HR Department Bullies Employees

Bullies, unfortunately, don't disappear after elementary school. When you run into an entire department devoted to bullying, what do you do?

My HR Department Bullies Employees


Illustration by Chesi - Fotos CC, Flickr cc 2.0

Why Job Quitters Shouldn't Aim for Fame

So, I'm quitting. Not everything, just my US News Column. It's been a good run, but it's time for me to move on to different things. My last column is, appropriately, on quitters.

Why Job Quitters Shouldn't Aim for Fame.

Guest Post from Ask a Manager on Preparing For Job Interviews

This is a first for Evil HR Lady. I'm letting someone else write today's post. (I know, you are all muttering about "what posts? All she posts now are links to posts. Well, a thousand pardons. Stick around long enough and you get something cool, like this.)

Anyway, Alison Green runs The Ask a Manager Blog where she gives fabulous advice. She asked if she could do a guest post and I said yes, because she's brilliant. So, here it goes:

I'm ridiculously excited to be guest posting at Evil HR Lady, who was my inspiration for starting my own blog a few years ago. So getting to take over her pulpit for the day feels pretty awesome.

One of the reasons that blogs like this one are so helpful is that so much relating to careers feels mysterious. The rules often don't seem clear, and yet you're expected to play by them anyway, which is a recipe for stress and frustration. And when it comes to job searching in particular, the experience can be outright awful -- especially in this economy. You've got endless application forms, companies that don't get back to you, and the overwhelming anxiety of the whole experience. What are hiring managers looking for? How can you come across well in the interview? What if you give a silly answer to an interview question? Why aren't they calling you back?

As a hiring manager, I've spent most of my time on the other side of this, and that's given me a pretty good sense of the spots where most interviewers can improve their game. I also happen to have an oddly compulsive love of sharing that information with job-seekers, in the hope that I can help take some of the anxiety and uncertainty out of the whole process.

Normally I just answer random questions on this topic on my blog as they come in -- but now I've created a more comprehensive guide to preparing for a job interview, which I'm here to offer to you for free. (Yes, free. Full disclosure: In exchange for giving you the whole thing for free, I'll put you on my email list so that you're occasionally notified about other resources I create in the future. But you can unsubscribe at any time if you hate that idea.)

To give you an idea of the sort of advice you'll find in this free guide, here are a few examples:

* The job description that was included in the initial posting is the key to knowing how to frame your answers and what to emphasize. You can use each line of the job description to figure out how to create the strongest answers. (And make sure to save that job description somewhere at the time that you apply for a job – because the employer may have removed it by the time your interview rolls around.)

* If there's an interview question that you're particularly nervous about, a lot of people will just go on being anxious about it and never really come up with a plan for how they'll handle it if it comes up. That's not helpful. Instead, you need to face it head-on, decide exactly how you’re going to answer it, and practice the heck out of that answer. Make yourself rehearse your answer out loud over and over and over.

* If you get nervous and worry that you're not going to come across completely perfectly, think about all the weird/annoying/awkward people you’ve ever worked with. They somehow got hired, and they were probably at least a little weird/annoying/awkward in the interview, right? They're living, breathing proof that you can be weird/annoying/awkward and still get hired. So when you start panicking that won't come across as a super-polished all-star, remember these people.

If this kind of thing is helpful to you, you can sign up for the full guide here, and I'll email a free copy directly to you:

Free Copy of How to Prepare for an Interview: Boost Your Confidence, Impress Your Interviewer, and Get a Job

It's free, it's hopefully helpful, and it even comes with a video version in case you don't feel like reading. Go download it!

Much thanks to Suzanne for letting me hijack this space, and good luck to all of you who are out there job-searching!

I'm Exempt: Can My Employer Deduct PTO for Doctor's Appointments?

You're an exempt employee putting in way more than 40 hours a week. So can your employer make you take PTO time if you need to be out of the office for 2 hours? Should they?

I'm Exempt: Can My Employer Deduct PTO for Doctor's Appointments?

Why It's Better to be Underpaid

What you want is to be overpaid. Right? Wrong. What you want is to be underpaid. Here's why.

Why It's Better to be Underpaid

My Boss Fired Me for Sleeping

Dear Evil HR Lady,

I was just curious if you can be fired for having a sleeping disorder that causes mild narcolepsy? I disclosed to my district manager that once I became tired (after a 10-12 hours work shift) it could happen. He was already upset that he heard that I was falling asleep at work. I had explained to him that I was off the clock out of uniform and was sitting in the office chair about to go home and I just leaned back and closed my eyes for a few seconds and an employee thought I was sleeping but I hadn’t been.

Being I was a manager I felt that I would be entitled to just rest my eyes for a few seconds but I guess not. His reply was if I ever was caught sleeping again I would be fired and I wasn’t worried, About two weeks later he came in handed me my last check and said once “I heard you were sleeping on the job during a meeting.” None of which was true and I had no option; he wanted to believe them over me and I feel I was wrongfully fired. It was a few years ago but I feel I’m still entitled to damages!

My Boss Fired Me For Sleeping

Resume Angst: Should I Include Short-Term, Unrelated Positions?

Dear Evil HR Lady,

I lost my job over a year ago. It paid very well and since then I have jumped around to about 4 different jobs trying to find a good fit and reasonable pay. Most of the jobs were beneath my skill level but I needed to earn more than unemployment so I took them. I finally landed an interview with a job that is comparable to my lost job in qualifications and pay, as well as skill level. Should I disclose all my past employers on the new application? Will any be found on a background check if they were less then a few months? In my past I had a very stable job history- worked at a company for over 10 years then the one that laid me off was 2 years. It was only the last year that I did not have stability. Can you offer me any advice as to how to handle this?

Resume Angst: Should I Include Short-Term, Unrelated Positions?

How to Answer Interview Questions About Your Weird Employer

What do you say about your current company when that company is practicing weird science? How about the truth?

How to Answer Interview Questions About Your Weird Employer

My Manager is a Failure

Dear Evil HR Lady,

I have a manager, who for 6 quarters, did not deliver on his sales targets. He gets away with it by shifting blame on team members and wrong customer account selection. After missing his first 3 quarters, he blamed it on team and almost got an entirely new team on board. Now with new team he on board, he is still not delivering on his sales targets. Now he blames it on wrong account selection. How can one expose this behavior to senior execs in the business, as this individual has wrecked havoc in other good sales people by managing them out of the company. Any suggestions on how to approach such a situation would be welcomed.

My Manager is a Failure

Am I Too Fat to Get Hired?

If you're overweight, does it affect your chances of getting a new job? Of course it shouldn't, but does it?

Am I Too Fat to Get Hired?

Should I Keep Applying to the Same Company

When HR tells you to keep checking the website, do they really mean it? Or is that just the wimp's way of saying, "don't call us, we'll call you?"

Should I Keep Applying to the Same Company?

It's Not That I Don't Love You All

I haven't posted for a while, which is strange, I know. But it isn't for lack of questions, but rather because my darling toddler poured a bottle of water over my laptop keyboard.

Why, I ask, do they not make computers waterproof?

Anyway, I am now the owner of a new laptop and posting will commence.