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workers compensation, exempt employee and partial work days
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workers compensation, exempt employee and partial work days
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Does anyone have any guidance on paying an exempt employee for partial days when the employee returns from a workers compensation injury and is only able to work part of a day?
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Forums » Topic Forums » Legal Forum » workers compensation, exempt employee and partial work days
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workers compensation, exempt employee and partial work days
posted at 4/26/2010 5:09 AM EDT
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Posts: 8
First: 2/16/2009 Last: 4/28/2010 |
Does anyone have any guidance on paying an exempt employee for partial days when the employee returns from a workers compensation injury and is only able to work part of a day? |
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workers compensation, exempt employee and partial work days
posted at 4/26/2010 8:01 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Are you large enough to be covered under FMLA and is the employee eligible? If so, that is one of the reasons that deductions and prorated wages can happen.
Otherwise, you must pay for the whole day and possibly the whole week if he/she works partial days. Your other choice is to decrease the salary, as long as you keep it more than the $455 per month based on the fact that work duties have changed. Or you could choose to change this person's status to non-exempt (all employees can be non-exempt, even the CEO; conversely NOT all employees can be exempt...they must meet the specific criteria). HOWEVER, and this is HUGE, you need to check to see if either of these would be considered retaliation under your state's WC laws. |
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workers compensation, exempt employee and partial work days
posted at 4/26/2010 8:05 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
One other thing, if you do reduce hours/wages, I suspect the lost wage claim from WC would pick up part of the difference such that it will be part of your loss claims and increase your experience rating.
It might be less expensive overall to continue paying 100% of wages even for part-time work. And like I stated, you really need to check with your state WC laws before making any wage changes. |
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workers compensation, exempt employee and partial work days
posted at 4/26/2010 8:13 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
rrupert. Just to throw a thought into the discussion. The Salary basis of the FLSA states that in order to be exempt one of the criteria is that the individual be paid on a salary basis. Another, in that same section is that the salary not be reduced because of "the quantity or quality" of work being performed. I can certainly see WC funds being allowed to keep this particular person whole. I accept that if FMLA is applicable wages can be reduced under FMLA without penalty. However, if no FMLA is available, and WC cannot keep the exempt employee whole, can the wage be reduced? |
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workers compensation, exempt employee and partial work days
posted at 4/26/2010 10:03 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I think that would depend on whether it would be retaliation under WC. That is my biggest concern.
Because FLSA allows the employer to change the employee's salary at any point as long as it stays about the minimum level. Another non-WC-related example would be an exempt person wanting a 30 hour a week schedule. The employer and employee could mutually agree to a lower salary as long as it is more than $455 per week. Or if the employee didn't accept the pay decrease the employer could decide to deny the flex schedule or term the employee for not working 40 hours per week. Neither side is required to accept the offer from the other side. So yes, the employer can lower the salary going forward (not saying I always would do so, it woudl depend on how long the person is expected to be out).... the only place that concerns me would be the retaliation laws under WC...not really FLSA. p.s. The employer could also refuse to let the employee work at all -- and therefore not have to pay any wages at all under the exempt employees laws. But in most WC claims, the goal is to get the employee back to work as soon as possible. The best case scenario is when there is FMLA protection...it actually protects the employer in cases such as this. |
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