July 2019: Ask A Lawyer: Special Edition – Ask an HR Professional

QUESTION: I was looking on Facebook and noticed that a staff member, who called out sick today, is actually at a concert. Can I write this staff member up and deny their sick pay?

ANSWER: There’s nothing more frustrating than finding out we’ve been lied to, especially when we find out via social media! Modern day Human Resources is both burdened and made more accessible by technology and it can be challenging to navigate. Anytime you’re faced with a new Human Resources challenge, it’s important to take a beat and really think through your next steps. One of the golden rules of Human Resources is the be consistent so take the time you need to really think through the precedent you are about to set. Do you really want to be spending time scouring Facebook every time an employee calls in sick? It’s one thing to bust an employee who often abuses the policy but what happens when you find out that one of your star performers has violated the policy? Are you willing to hold that employee accountable in the same way? What if that cause a rift (or worse, a claim of discrimination) and they leave the organization?

Let’s look at this from a different angle. We absolutely want good relationships between managers and employees, but do we want those relationships to be so close that they are connected on Facebook? Maintaining a professional relationship with those you may someday have to discipline is key to successfully managing employees. Consider implementing a policy where managers are only allowed to connect with employees via professional social media networks, if at all. The bottom line is there are a variety of ways that you could handle the situation. Consider the ongoing maintenance of the approach you take, develop a solid plan that you can easily replicate (exceptions may apply) and don’t create more work for yourself. As they say, choose your battles.

QUESTION: I’m having a hard time with employees working overtime. There is enough work for employees to work a ton of hours, but the owner discourages overtime and honestly doesn’t have the money to pay for it. So, midway through the week the manager calculates everyone’s time and will let people know how many more hours they can work in the week. Often times the manager will ask the employees to take a longer lunch so that they do not go into overtime. We have some employees questioning the request for longer lunch breaks from management, stating they are working during that time. Is it legal to discourage overtime? How should I approach this situation?

ANSWER:Wage and hour questions are so common and can easily get a company into hot water. The Fair Labor Standards Act (FLSA) is pretty clear when it comes to hours worked – pay the employees for every hour worked (regular and overtime rates) or else! That being said, employers have the ability to set parameters around how and when employees will be eligible for overtime. A common practice is to add an overtime policy to your handbook, stating that all overtime must be approved in advance. Now, that doesn’t mean that if an employee works unauthorized overtime, they won’t be paid the overtime rate for those hours. But it does mean that the employee can be disciplined or even terminated for not obtaining the required authorization.

Your employees’ concern about longer lunch breaks that they are working through is legitimate if they are in fact working during those break periods. Again, all hours worked must be paid to the employee. Perhaps, instead of a longer lunch break and running the risk of employees working during those breaks, send employees home earlier or have them come in later to offset the potential for overtime. Take the time to review your overtime policy and start writing up employees who do not comply with the policy. It may be more work now but once your workforce understands that policy it will become culturally (organizational culture, that is) unacceptable to work unauthorized overtime and your workforce will help to enforce the rule (thank you, peer pressure), if needed.