August 2010

SR: FMLA and Non-FMLA Leave Mixed

by Evil HR Lady on August 31, 2010

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.



My HR Manager is a Nightmare

by Evil HR Lady on August 30, 2010

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

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SR: 2 Pay Questions and an Unemployment Problem

by Evil HR Lady on August 27, 2010

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

by Evil HR Lady on August 27, 2010

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

by Evil HR Lady on August 27, 2010

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?

by Evil HR Lady on August 25, 2010

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

by Evil HR Lady on August 23, 2010

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

by Evil HR Lady on August 20, 2010

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


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?


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