• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Sorry but another salary ?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

tammy8

Senior Member
What is the name of your state?What is the name of your state? NC

No contract for salary.

No contract for vacation or sick days as we are a small 5 person office....just time off when needed or arranged--I know bad thing but something I have no control over.

I am the "office manager" of this small office. I have an employee on "salary" since Feb 04. As of today, she has missed 6 days due to illness(not to mention snow days where I worked but she didn't cause she was inexperienced in driving in bad conditions--3 of those). This morning I get a call at 7am that she is sick and going to make a dr's appointment and will call me later with the details. I hear nothing from her so I call her at 10:30am to find out "she went back to sleep" and had an appointment at 2pm. I told her to call me after the appointment and let me know (and side note to ask the dr why she stayed sick all the time and if she was so sick why not go to an urgent care center).

I never heard another word......

I talked to the co-owner of our office and told him my thoughts were, to dock her pay for each day she has been out as she has no vacation or sick time built up (however no contract was ever drawn up so????). A couple of weeks ago, I spoke with this girl on her work ethics as she stays on her cell phone more hrs a day than I can count_-her mother even got mad at me because I told employee she was not to have personal calls EACH AND EVERY DAY and her mother got mad since I occasionally speak with my Mom during the work day but I have 10 yrs work on new young employee) and not being able to get much done while I did 90% of the work and our parttime ran circles around her--she promised to do better and did for 2 whole weeks).

Do I have the authority, with the owner's permission to dock her pay especially due to the number of absentees or even due to the number of "dr's appointments" that have lasted all day (about 4 more days besides the orginal 6 days off)? Yes I have not been documenting like I should however there is another employee who can testify about the absentees.

I am torn as this is a younger girl (19) that has no clue to the real world however I have a business to run. Is the fault of my business owner on him in the fact that there is no contract?

I strongley believe that she is having domestic problems with her boyfriend and believe this is the reasoning behind the sickness but honestly can't prove it--ie Friday when we left she was torn up due to boyfriend issues that I believe continued into the weekend).

BTW when my office went under new ownership, I "lost" 4 weeks pto however I have not taken a day off, and rarely a lunch hour in over a yr. I may be taking out the fact that I am getting burnt out when new help was hired and I am not one to let my office go to heck and a hand basket while I am gone.....

Will no contract help me through all this??????? The final decision is up to the boss who is out of state at this time but I gotta do what I gotta do to run the office like it needs to be...
 


N

NoDimBulbs

Guest
problem employees in small offices

Sounds like you are battling with the issue from an human vs. business needs perspective.

Without a contract in writing specifying so, or collective bargaining etc... there is no job protection for employees. They are "at-will" which means they work there for as long as the company thinks that their presence is good for the business, all factors considered.

Really, the questions you need to answer should be found in an internal document that describes what the terms anc conditions of employment are with the firm. You can make employees aware of these terms and give them an opportunity to follow them. This would make your job alot easier.

It is unlikely that your state laws (check with your State Department of Industrial Relations) will cover you if you an organization below a certain size. Consult your constituent (the owners) for direction following your recommendation for some action that would correct the problem.
 

cbg

I'm a Northern Girl
Whoa, hold the phone here!

Nodimbulbs, there are specific Federal laws that address this issue. State law may come into it but Federal law MUST be followed. Any internal documents have little, if any, bearing on whether the law is being followed in this instance or not.

Tammy, the problem is that we don't know if your employee is exempt or non-exempt. This will be determined by her duties - NOT by her job title or how she is paid. It is legal to pay a non-exempt on a salaried basis as long as you also pay her overtime when it is due. You have not provided anywhere near enough information to determine if you have been paying her within the law or in violation of the law, and it makes a TREMENDOUS difference in the answer to your question. You are going to either have to give us a GREAT deal of detail about what her job duties are (in which case we might be able to make a guess) or else you will have to take a look at the Fair Labor Standards Act and the Fair Pay Act to see if you are within the law or not. Look on the DOL website (www.dol.gov) and check under those statutes. If you get stuck we'll try to help.

Now.

If we ultimately determine that she is exempt (which would mean that paying her on salary is perfectly legal), you would NOT be able to dock her salary for the days she has missed. If you had a written policy with a pre-determined number of sick days AND she either was not eligible for it, or had already used all the time available to her, THEN you would be able to. But the law specifies that before you can dock an exempt employee for sick days, there MUST be a formal policy wherein an employee is granted a "reasonable" number of days, already in place. ("Reasonable" is not defined; common law determines it to be at least five.) But without this formal policy, the law does NOT permit you to dock an exempt employee for the use of sick days.

If we ultimately determine that she is non-exempt, then you do not have to pay her for any time she does not work, regardless of the reason she misses work and regardless of whether there are any formal policies or not. HOWEVER if that is the case, while you are at liberty to pay her on a salaried basis when she works 40 hours or less in any given week, you MUST pay her overtime any time she works more than 40 hours in a week. That overtime MUST be at the rate of time and a half. You may NOT give her time off in lieu of overtime. This, too, is Federal law. (Since you are only required to pay for time WORKED, not time PAID, it doesn't sound as if it would be much of a problem for this employee.)

Now, here's the good news. Since you have only 5 employees, you do not fall under the ADA or the FMLA or any other mandated leave law. This being the case, you are COMPLETELY at liberty to discipline her for excessive absences in any way you choose, up to and including termination, excluding only docking her pay if she is found to be exempt. And from what little you have given us, I suspect she is going to be found as non-exempt.

One caveat; As the previous poster mentioned, it is EXTREMELY unlikely that your state has any laws requiring that you provide her with x amount of medical leave, not only because of the small number of employees but also because of the relatively short duration of her employment. But it probably wouldn't be a bad idea to call the state DOL and double check. I could tell you but my office is being moved and all my source materials are still in boxes.

BTW, with an office as small as yours I really don't see the need for any employment contracts. You may wish to put together an employee handbook, but unless you do a VERY poor job of putting it together it's unlikely that it would constitute a contract, thus giving you some wiggle room if circumstances require.
 

Beth3

Senior Member
Ditto to what cbg stated. I also concur on the contract issue. The vast majority of employees are "at will" employees. You/the boss should CAREFULLY consider this issue and consult with an attorney before EVER entering into an employment contract with anyone. I seriously doubt it's appropriate to even consider doing so for clerical help.

In response to your question "can I dock her pay," the question you should be asking is "why don't we discharge her?" She is frequently absent (and you can count on the fact that it's only going to get worse), does very little work, spends most of her time on the telephone discussing personal issues, has the gall to get ANGRY with you when you discuss it with her, and then her mother gets in the act too.

I'd have shown her the door weeks ago. The benefit of her being an "at will" employee is that you can just tell her "this isn't working out" and terminate her employment.
 

Sponsored Ad

Top