Alexis, Of Counsel at the Kinaga Law Firm in Los Angeles, offered his FMLA tips at BLR’s Advanced Employment Issues Symposium held recently in Las Vegas.
Transferring Employees on Intermittent Leave or Reduced-Schedule Leave
There are only two situations in which employers may transfer employees to another job that better accommodates their new intermittent schedule, says Alexis:
- Leave that is foreseeable based on planned medical treatment, including a period of recovery (for example, weekly chemotherapy treatments)
- If the employer agrees to permit intermittent or reduced-schedule leave for bonding
A common mistake employers make is to transfer employees to another position because leave requested is for treatment “as needed.” Technically, says Alexis, you can’t transfer in this situation; transfer is for foreseeable, planned treatment.
The employer may require the employee to transfer temporarily to an available position when:
- The employee is qualified for the position; and
- The position better accommodates the recurring periods of leave than the employee’s regular position.
However, notes Alexis, employers still must comply with applicable collective bargaining agreements and other federal and state laws—for example, the Americans with Disabilities Act (ADA).
Are class action lawyers peering at your comp practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Try it for 30 days … on us.
Other Considerations Around Transferring
- The employer may also temporarily alter an existing job.
- Transferees must receive equivalent pay and benefits.
- A proportional reduction in benefits is permitted if it is the normal practice to base benefits on hours worked.
- When the need for leave is over, you must return the employee to the same or an equivalent position.
- You cannot require the employee to take more leave than the employee needs, for example, while you are trying to figure out what to do to transfer the employee back.
Intermittent leave—just one of every comp manager’s challenges. Take wage and hour? What’s the regular rate for overtime? Prevailing wage? Mobile devices after hours—the list of ways you can get into trouble seems endless. How do you really know if your managers and supervisors are following your guidelines? There’s only one way to find out what sort of compensation shenanigans are going on—regular audits.
To accomplish a successful audit, BLR’s editors recommend a unique checklist-based program called the Wage and Hour Self-Audit Guide. Why are checklists so great? Because they’re completely impersonal, and they force you to jump through all the necessary hoops, one by one. They also ensure consistency in how operations are conducted. And that’s vital in compensation, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.
Experts say that it’s always better to do your own audit and fix what needs fixing before authorities do their audit. Most employers agree, but they get bogged down in how to start, and in the end, they do nothing. There are, however, aids to making Fair Labor Standards Act (FLSA) self-auditing relatively easy.
What our editors strongly recommend is BLR’s Wage & Hour Self-Audit Guide. It is both effective and easy to use, and even won an award for those features. Here’s what customers like about it:
- Plain English. Drawing on 30 years of experience in creating plain-English compliance guides, our editors have translated FLSA’s endless legalese into understandable terms.
- Step-by-step. The book begins with a clear narrative of what the FLSA is all about. That’s followed by a series of checklists that utilize a simple question-and-answer pattern about employee duties to find the appropriate classification.
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- Complete. Many self-audit programs focus on determining exempt/nonexempt status. BLR’s also adds checklists on your policies and procedures and includes questioning such practices as whether your break time and travel time are properly accounted for. Nothing falls through the cracks because the cracks are covered.
- Convenient. Our personal favorite feature: A list of common job titles marked “E” or “NE” for exempt/nonexempt status. It’s a huge work saver.
- Up to Date. If you are using an old self-auditing program, you could be in for trouble. Substantial revisions in the FLSA went into effect in 2004. Anything written before that date is hopelessly—and expensively—obsolete. BLR’s Wage & Hour Self-Audit Guide includes all the changes.
You can examine BLR’s Wage & Hour Self-Audit Guide for up to 30 days at no cost or obligation. Go here and we’ll be glad to arrange it.