Employment Law Questions? Ask an Employment Lawyer.
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Has this person been working for you for over a year?
Also, does this person have an employment contract stating she can only be fired for cause, or is she part of a union?
Sort of. She worked for us for 4 years, then was laid off during the recession and is now back with us as of November 2012. There is no employment contract and she is not part of a union.
When was she laid off?
requirement for fmla
We are a small business of 5 employees
You beat me to it :)
Okay, so legally, this person is an at will employee. This means that you are allowed to terminate her for any reason that is not in breach of contract or is in violation of her civil rights.
However, I should warn you that if you were to fire her, she could make the argument that you really fired her due to her disability, which was over her own serious health condition of depression related to the loss.
However, since you only have 5 employees, you should be able to make the argument successfully that it was for a legitimate business interest
If we chose not to fire her, do you have recommendations as to disciplinary actions?
Is she an exempt employee or an hourly employee?
Well, you can put in a formal write-up in her employment file, or you can suspend her without pay.
However, if you suspend her, you need to do so for a full week
Is suspension the same thing as leave without pay?
However, you need to be careful
Because while you can deduct pay from an exempt employee when they are absent from work for one or more full days for personal reasons such as this, if they attribute the absence to sickness or disability you can only deduct for full weeks that the person is absent
So if she has told us that she will not work this weekend and she will travel to the funeral for a week next week, would we suspend her from today until she returns a week from next Tuesday?
Does she usually work M-F?
Generally, but we manage large projects that occur over weekends quite often and that is what is happening this weekend.
An exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. (absent certain exceptions) Exempt employees do not need to be paid for any workweek in which they perform no work. So, you need to determine what her workweek is. If it is normally M-S, then that would be her workweek. But, if it is T-Monday, then that would be her workweek. Does that make sense?
Also, does she have vacation time that she would be able to use?
The workweek this week would be Monday-Monday and then next week would be Tuesday-Friday and then back to Monday-Friday.
No, it doesn't work that way. It is a set workweek each week
Because if you have given her vacation through a contract, you could find yourself in breach of contract depending on the language of the vacation policy
Okay, so we would pay her for this week and then if she were suspended, we would not pay her for next week when she would not be working?
That is correct. That would completely protect you.
Okay. Thank you for your help!
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Have a wonderful rest of your day.
I am glad that I could get you pointed in the right direction.
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