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Massachusetts: How to punish an exempt employee for tardiness

On Lawyer & Legal » Employment & Labor Law

4,569 words with 6 Comments; publish: Mon, 01 Jun 2009 13:15:00 GMT; (80046.88, « »)

I work for a small business of 13 employees.

I have a situation where I have a salaried systems administrator who works the midnight to 8am shift. We have a severe issue finding adequate staffing in general, let alone this shift. We're a MA incorporated company, but he works from him home in FL.

The employee is frequently 45 minutes late to work and has used up all of his vacation and sick leave for 2009. I was told that I can not change him to an hourly employee because I would have to apply this to all of the equal level systems administrators. I was also told that changing his title would do little since "equal pay for equal work," would prevent this work around.

I want to be able to punish and prevent this absenteeism but I seriously do not know what to do at this point. I would fire him but we have had no luck finding anyone for the shift he works.

Ideally, I would like to deter this behavior through some method of docking his pay.

I have 2 questions based on the info above:

1. Can I dock his pay for tardiness?

2. Since he has used all of his available sick and vacation time, can I dock subtract his pay for days off that he takes for the remainder of 2009?

Thank you!

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    • I want to be able to punish and prevent this absenteeism but I seriously do not know what to do at this point. I would fire him but we have had no luck finding anyone for the shift he works. I'd keep looking for a replacement. There sure are a lot of people out of work so It's hard to imagine it's impossible to find a qualified individual willing to work that shift, especially if they can work from home. That would be a dream job for quite a few IT people.

      And of course when you find someone, fire this guy.

      #1; Tue, 02 Jun 2009 09:40:00 GMT
    • Thanks for the response.

      I was told that changing his title to change his pay structure would not work because he would still be preforming the same core job functions of of other employees. The example they gave me was, "you can't call an sys admin a janitor if he's doing the work of a sys admin."

      It's good to hear a different answer regarding our ability change him to hourly. I'll have to look into that more. Thank you.

      #2; Mon, 01 Jun 2009 13:30:00 GMT
    • Agreed with the above on job titles. If you want the actual rule, ...

      29 CFR 541.2 - Job titles insufficient.

      A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements of the regulations in this part.

      #3; Mon, 01 Jun 2009 14:46:00 GMT
    • you can call him a toaster.

      :D:D I like my toast light with extra butter, please.

      #4; Mon, 01 Jun 2009 13:56:00 GMT
    • Assuming that he is legitimately an exempt employee:

      1.) No

      2.) No, unless he takes a full day off. In that case, yes.

      The only circumstances under which an exempt employee's pay can be docked in partial day increments are during the first and last week of employment, or if FMLA is involved. In all other circumstances, without exception, if he works any part of the day he must be paid for the whole day, though vacation and/or sick time can be applied. However, under the circumstances you are describing, if he misses a FULL day of work, he can legally be docked for that day.

      However, whoever is telling you that you cannot change him to hourly without also changing all the others of the same title, is wrong. They also do not appear to understand the legal meaning behind, 'equal pay for equal work'.

      You not only can change him to hourly, that is exactly what I would do (assuming that he does not work a lot of overtime, in which case it would be counterproductive because it would benefit him financially).

      "Equal pay for equal work" does NOT mean that everyone in the same job has to be paid the same. It means that any differences in pay cannot be based in a characteristic protected by law.

      Of course, firing him works too.

      #5; Mon, 01 Jun 2009 13:25:00 GMT
    • You can call him a janitor, you can call him a systems analyst, you can call him Gary, you can call him a toaster. Job titles have no legal meaning.

      Non-exempt is the default. All jobs can legally be considered non-exempt. Microsoft could call Bill Gates non-exempt if they wanted to (and were willing to pay the overtime). In fact, the burden of proof is on the employer to show that a job is NOT non-exempt, and no employer is required to call an employee exempt even if they qualify to be so called.

      #6; Mon, 01 Jun 2009 13:35:00 GMT