Exempt & Non-Exempt

What is an EXEMPT employee?

 

An employee who is exempt from receiving overtime pay and is also exempt from minimum wage requirements set by the FLSA. If employee exceeds 40 hours in a workweek, they do not qualify to receive overtime compensation.

 

Employees classified as EXEMPT must meet all of the following requirements:

1. Must be compensated at a rate no less than $455 a week
2. Must be compensated on a salary or fee basis
3. Must perform certain job duties

Each employee should be measured against a three tier test system to determine if an employee can legally be classified as EXEMPT:

 

Test 1. Salary Level – as noted above – must be $455 or higher per week

 

Test 2. Salary Basis – how they’re paid – must be salaried of fee – NOT hourly.

 

Test 3. Job Duties (EXEMPT duties) for each of the following:

• Executives
• Outside Sales
• Creative Professionals
• Administrators
• Learned Professionals
• Computer Professionals

IMPORTANT: There are exceptions to each of these tests so do not assume at first glance that the employee truly is exempt.

 

What is a NONEXEMPT employee?

 

An employee who is covered by the FLSA and must receive overtime pay for hours worked in excess of forty (40) in a workweek. Employee must also be paid no less than minimum wage.

 

Ensure that each of your employees are properly classified by following the FLSA guidelines. Details can be found by visiting the DOL.GOV website.

Understanding Pregnancy Discrimination

Pregnancy-based bias and discrimination are becoming more common in the workplace. Title VII of the Civil Rights Act protects individuals from discrimination based on pregnancy, childbirth or related medical conditions. Employers must recognize and understand how pregnancy-based discrimination occurs to avoid lawsuits.

 

Examples of discrimination because someone is pregnant, may become pregnant or has any pregnancy related medical condition:

• Demotion
• Denying employment or opportunity to apply for consideration
• Denying promotion
• Termination
• Job transfer without notification to employee or agreement for good cause
• Harassment, rude comments
• Exclusion from work benefits offered to workers with other medical conditions
• Adjustment of pay or hours even though employee is still able to perform job duties

If a pregnant employee is able to perform their job then they must be permitted to do so unless stated otherwise by a doctor.

 

Also, if an employee has a pregnancy-related disability then they must be given the same benefits as employees who are temporarily disabled. If the employer allows temporary disabled employees to:

• Modify tasks or are given alternative job duties
• Take disability leave
• Leave without pay

Then the employer must do the same for an employee who has a pregnancy-related disability.

Tired of Being Tired?

In order to work safely, your workers need to be awake and alert. Are they? One condition that may cause your workers to be tired on the job is Chronic Fatigue Syndrome (CFS). The Centers for Disease Control and Prevention (CDC) states that CFS "results in a substantial reduction in occupational (work-related), personal, social, or educational activities."

 

Because this illness can result in severe and debilitating exhaustion, it may be worth a brief wellness training session to, well, "brief" your employees on this condition. First, give workers this list of additional CFS symptoms as described by the CDC:

• Impaired memory or concentration
• Extreme, prolonged exhaustion following physical or mental activity
• Unrefreshing sleep
• Muscle pain
• Multijoint pain
• Headaches of a new type
• Sore throat
• Tender lymph nodes

Encourage your workers to see their medical professional if they are experiencing one or more of these symptoms on a chronic basis, which is defined as six months or more. Also, instruct them to take these steps to manage CFS on the job:

1. Work with their doctor on a treatment plan that alleviates their CFS symptoms.
2. Talk with their supervisor about possible alternate ways to get the job done.
3. Pace themselves. CFS patients cannot endure regular cardiovascular exercise routines but must still remain active at moderate levels.
4. Join a CFS support group. Check with their health provider or visit www.cdc.gov/cfs for local groups and more information.

Give your workers the safety and health information they need to help them stay safe and healthy and able to work at peak performance.

 

Why It Matters

• There is no known cause for CFS currently.
• There is also no known cure.
• That’s why it’s important for workers to be educated about the need for seeking medical advice from a team of professionals to help alleviate and ultimately, end the chronic symptoms of CFS, so they can return to productive lives at work and at home.

Can You Recognize Sexual Harassment When You See It?

Let’s see if you can recognize situations involving workplace sexual harassment.

 

In each situation below, determine if sexual harassment is an issue. Then scroll down to check your answers.

1. A female employee wears short skirts and tops with low necklines to work. Is this inviting sexual harassment?
2. A female supervisor makes frequent comments about a male employee's physique. Is this sexual harassment?
3. A male supervisor makes a sexual advances to a female employee under his supervision. He promises her a raise if she'll go to bed with him. Is this sexual harassment?
4. A male supervisor makes a sexual advances to a male employee under his supervision. He promises the employee a promotion in exchange for dating. Is this sexual harassment?
5. Two employees forward each other off-color jokes that they receive in e-mails. Is this sexual harassment?
6. An employee asks a co-worker out on a date. Is this sexual harassment?
7. Two co-workers develop a personal relationship. Is this sexual harassment?
8. An employee posts a swimsuit calendar in his work area. Is this sexual harassment?
9. A female employee posts a male pinup in her work area. Is this sexual harassment?
10. What if a good customer makes sexually provocative comments to employees? Is this considered sexual harassment?

Answers

1. No. Employees must abide by the workplace's dress code, of course. But if the code permits this kind of attire, employees have the right to wear it without being harassed.
2. Yes. Male employees can be victims of sexual harassment and have the same protection under the law as female employees.
3. Yes. The supervisor is using his power and authority to gain sexual favors from an employee and offering an inducement in return for sex.
4. Yes. This is sexual harassment for the same reason as in the previous example. Sexual harassment can happen between two people of the same gender. The key point is not the sexual orientation of the people involved but that the harassment is sexual in nature.
5. No. As long as this exchange is not unwelcome, it would not be sexual harassment. However, if one of the employees objects and the other keeps sending the e-mails, then it would be. We should also point out that such exchanges might—and probably should—violate your organization's e-mail policy.
6. No. A simple request for a date is not sexual harassment. However, if the answer is no, the employee should respect that and not keep asking. Repeatedly asking for a date under the circumstances would be unwelcome and therefore sexual harassment.
7. No. Employees are free to form romantic relationships with co-workers. As long as both people consent to the relationship, this is not harassment. Remember that only unwelcome sexual conduct is unlawful.
8. Yes. Under the Equal Employment Opportunity Commission's (EEOC) definition of sexual harassment, posting a swimsuit calendar is considered a “visual display of explicit or suggestive materials.”
9. Yes. This is hostile work environment sexual harassment for the same reason as the previous example. It doesn't matter if the visual display is of a woman or a man.
10. Yes. Customers or clients can be guilty of sexual harassment, just as co-workers and supervisors can.

Employee Discipline General Guidelines

What do you see time and time again... Document, Document and Document!!

So what do you document?

• Verbal warnings
• Outline of the behavior problem
• Detailed corrective action required
• Additional steps / actions to be taken
• Signatures / statements

Employers need to make sure that they're *proactive, not *reactive. When we're reactive we tend to be more emotional in our approach. This can lead to mismanaging the situation and tends to cause more issues than solutions. It also creates a poor perception amongst staff and can cause managers to lose respect.

Examples of being *reactive:

• Immediately yelling
• Using curse words and slamming doors
• Public berating
• Calling names

Examples of being *proactive:

• Asking to speak to employee in private to discuss issue
• Remaining calm
• Asking questions regarding the incident to define the problem
• Provide solution for immediate improvement, define expectations

The main points here are to keep current and consistent documentation and to be proactive in your approach rather than reactive. It's really that simple!

Workplace Investigation Steps

A member of Western Home Designs management received three different complaints from female employees who complained that they had been sexually harassed. Each woman claimed that John Doe was the harasser. Here are the steps that Western Home Designs management followed:

1. Management provided each of the women with a Harassment Complaint Form to fill out and sign.
2. Management contacted their HR department and asked for an HR representative to investigate the Harassment complaint.
3. Amy Miller, an HR representative of Western Home Designs, immediately began investigating the harassment claim.
4. Amy Miller interviewed 10 employees.
• 3 women claiming to be harassed
• 7 other employees who may have been a witness of the harassment claims (based on location and time of incidents)
• She met with each individual separately and asked open-ended questions to get as much information as possible. She focused on drawing out the facts, not opinions, from their responses. She took notes to document the questions she asked and the answers she was provided. She gave each individual her direct line and asked them to contact her if they remember anything they didn’t mention in the interview or just want to talk more about the incident.
5. Amy Miller met with John Doe to inform him about the claims of sexual harassment. She explained the incident to him and allowed him to give his side of the story.
6. Amy Miller met with the 3 most important witnesses to gain more information that they may have after hearing the claimed “harassers” side of the incident. She finalized their documented statements and had each witness sign their statement. She then met with John Doe to finalize and sign his documented statement.
7. Amy Miller gathered all of her notes and statements to finalize the documented details of the incident. The details gathered from the incident allowed the conclusion, with great reason, that John Doe had committed sexual harassment. John Doe’s employment was terminated because he sexually harassed other employees. Western Home Designs has a zero tolerance Harassment Policy.