Loren K. Allison – Fort Wayne Attorney

Lawyer Loren Allison – Attorney at Law, emphasis on employment and business law, discrimination, as well as offering training for employers in Fort Wayne Indiana and surrounding areas.

YOUR COMPANY’S NEED FOR A MEDICAL COMMUNICATIONS POLICY

YOUR COMPANY’S NEED FOR A MEDICAL COMMUNICATIONS POLICY

As you are well aware, your workplace is governed in part by administrative agencies when it comes to medical communication with employees.  Laudible as the ADA and FMLA are in the broad scheme of things, they place a greater administrative effort on your staff.  Employers are constantly running the risk of asking, saying or doing the “wrong” thing when it comes to making inquiries of an employee’s medical condition.  A policy which can help make you “bullet proof” from charges and lawsuits is a Medical Communication Policy.

Breakdowns and miscommunications surrounding medical leave and consequent return to work issues are frequently the result of a doctor being a zealous advocate for their patient while you want an employee who is honest about their leave and their restrictions to perform the essential functions of their job.  Do they need “reasonable accommodation” upon their return to work?  Do you know how and when to offer modified duty?  In the absence of a policy, your actions could be painted as discriminatory and pretextual.  What should such a policy entail?

•    When you are about to hire an applicant, you need a policy which provides for past job offer medical examinations to determine whether they can perform the essential functions of the job they are expected to assume;

•    Employees may be requited to have an examination on other occasions, such as transfers or promotions, or “whenever management determines that the interests of the Company will be served/” This is your company, run it, but be able to back up your legitimate business reasons;

•    Whenever an employee is absent because of an alleged illness or injury, you may take steps necessary to confirm the nature and extent of the health condition, notably to determine if it was work related;

•    But for instances involving FMLA leave, you should accept medical communication only from licensed physicians who have personally seen the employee on the day the communication is written or dictated.  This helps eliminate the nurse with the rubber stamp;

•    Medical communications must be satisfactory to the company and preferably on a designated form which asks questions you want answers to.  If the doctor’s excuse does not comply with your policy, it will be rejected;

•    Post your “Policy On Medical Communication From Doctors” for employees and follow it in a uniform and consistent basis to defend yourself from claims of discrimination.

It is your workplace.  Exercise sound managerial judgement to keep it yours.

Written by Loren Allison

YOUR EMPLOYEE HANDBOOK – YOUR BEST DEFENSE

YOUR EMPLOYEE HANDBOOK – YOUR BEST DEFENSE

An employee handbook presents an excellent opportunity for you to educate
employees about your organization, its history, and its origin.  It also allows you to establish a positive employee relations philosophy, to let your employees know that they are an essential and valued part of your organization, and to instill in them a loyal, positive, and favorable attitude towards you.  It is also your best defense at an unemployment compensation hearing, before an administrative agency, or in court.

Every union-free organization that wants to remain that way should consider a clear statement explaining management’s preference for a direct, personal employment relationship and how a union-free relationship benefits everyone.  Likewise, union-free employees should have a mechanism for resolving complaints, gripes, or employee concerns generally.  Management has a vested interest in resolving such complaints internally, rather than having employees turn toward outside intervention, such as litigation, federal, state, or local EEO agencies, or third parties, e.g., labor unions.  Such problem-solving mechanisms may range from the traditional “open-door” policy to full-fledged grievance procedures that culminate in such alternative dispute resolution systems, as peer review procedures or the use of independent arbitrators.

In addition to publicizing your employment-at-will policy, you are well-advised to emphasize that the policies set forth in your handbook can be changed or revised at any time, and specify how these changes will be effectuated and published.  Setting forth such information will serve to protect you from employee claims that new policies were improperly adopted or publicized.  Also, if employee benefits are discussed in the handbook, the handbook should contain a statement that the plan documents are controlling to avoid later claims that a benefit is vested when the employer never intended it to vest.

Importantly, you should have a list of offenses, generated from the supervisors who have an “ownership interest” in them, that will result in discipline, distributed in conjunction with employee handbooks and posted on appropriate bulletin boards.  This list should be reasonably specific but should include at least one general, catch-all offense that is broad enough to cover unanticipated instances of misconduct.

Of the many such lists that have been developed, I favor one that has approximately twenty offenses.  A greater number creates the danger of being trapped by the “jailhouse lawyer” employee who will argue that he/she did not commit the specific offense with which he/she is charged.  A lesser number generally means that the offenses are so broadly worded that they do not give the employee reasonable advance notice of the type of conduct that is being condemned.

Whether you are in a unemployment hearing, dealing with the EEOC or in federal district court, an employee handbook which is uniformly and consistently enforced, is perhaps the most important piece of evidence in defending your actions.

Written by Loren Allison

OVERTIME PAY FOR CHRISTMAS

“Overtime Pay For Christmas”

Since 1975, the share of employees who qualify for overtime pay has plummeted from 62% to 7% according to the Department of Labor. The solution? Under new rules announced by the Obama administration, 4.2 million American workers will become eligible for overtime pay effective December 1, 2016.

Your new regulation double the current salary threshold for salaried employees who are guaranteed overtime pay from $23,660 ($455 per week) to $47,476 ($913 per week). Moreover, that threshold will increase over the next succeeding three years to ensure that it keeps up with inflation.

As a Business People employer, you can react in one of two ways: pay for employees above the new floor of $44,476, rendering them ineligible for overtime pay, or convert salaried workers into hourly workers. To limit overtime exposure, the converted hourly employee must work no more than 40 hours per week.

A third option is to classify all salaried employee as an “executive, administrator or professionals. The Fair Labor Standards Act allows an employer to deny this category overtime pay. However, to do this without examining their true job duties invites DOL investigations and potential lawsuits as Starbucks, Dollar General, CVS and Walmart discovered.

Finally, since hourly employees do not always qualify for the same benefits as salaried employees – 401(k), vacation time, health care- Northeast Indiana employers will need to reexamine how they classify workers. Most will choose the route that is the least costly.

With the salary compensation for overtime doubled, many workers will expect to get a nice raise this December. You need to act now.

Article by Loren K. Allison, attorney at law
Call For A Consultation: (260) 466-5205

Written by Loren Allison

WHY YOU NEED A FMLA REVIEW

WHY YOU NEED AN FMLA REVIEW

The Family Medical Leave Act has been in effect for employers with 50 or more
employees for decades. While the number of obvious cases of interference has declined, the number of claims investigated by the Department of Labor over employers who get “too cute” with the Act, now make up the lion’s share of their investigations. Investigations, of course, can land you in court.

Instances in which companies were found to have skirted the Act include:

• Drafting and utilizing an FMLA policy which does not comport with the Act and utilizing that policy to the detriment of employees;

• Assessing attendance points and terminating an employee whose absences are later certified to be FMLA-related;

• Decline, for various business reasons, to approve FMLA leave when presented with FMLA certification of the need for such leave;

• Give an employee a negative performance review because the employee did not complete the same amount of work as other employees who did not take FMLA leave during the same performance review period;

• An employee returns from FMLA leave to find their pay or job duties have been reduced because they were on leave;

• Demoting, terminating, or reducing the job duties of an employee that requested or took leave;

• Discharging an employee on leave or upon return from leave. If it is due to something you discovered while the employee was on leave, document it and be prepared to defend your actions since it looks like interference on it’s face.

Remember, if you allow your supervisors to play “fast and loose” with FMLA fact patterns, the FMLA permits personal liability for violations. Federal courts routinely find an employee may sue not only the company but also individual managers (including HR representatives) for FMLA violations.

While DOL enforcement priorities make it unlikely that agency will sue you, under a referral system they have implemented (“Bridge To Justice”), the Department will refer an aggrieved party to the American Bar Association to find them an attorney.

To complicate matters further, the ADA can bite employers in the rear once FMLA leave has been exhausted. The Equal Employment Opportunity Commission has served notice that it is aggressively looking at companies that have automatic termination policies after an employee has missed specified periods of work, contending such policies violate the Act. You need to ask such employees before the end of their FMLA leave if they will be able to return and perform the essential functions of the job, with or without a reasonable accommodation.

As exercising your managerial rights to run your business becomes more complicated, you need to rely on qualified counsel to guide you through this minefield. They should review your employee handbook and the letters and forms in use with FMLA leave, to ensure that your supervisors are acting in conjunction with HR to keep you out of harm’s way.

Article by Loren K. Allison, attorney at law
Call For A Consultation: (260) 466-5205

Written by Loren Allison

ORGANIZING WITHOUT UNIONIZING

ORGANIZING WITHOUT UNIONIZING

Did you know that your employees can organize, without “unionizing”, to get protection under federal labor laws? The National Labor Relations Act provides this alternative as a way to give employees more clout on the job by permitting workplace committees engaged in “protected concerted activity” to negotiate with an employer over wages and other terms and conditions of employment. The Act – enacted under President Franklin Roosevelt in 1935 – prohibit employers from retaliating against workers who join together to improve their working conditions.

Employers typically think of the Act as a means of formal union organizing. It is however, much more expansive than that. No less of an authority than the United States Supreme Court said in a case in which workers walked out of a factory because it was too cold, that the Act protects non-union workers, too.

When two or more workers act together (in concert) “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, they are covered by the Act and the authority of the National Labor Relations Board. Importantly, the Act does not protect personal gripes or malicious behavior. But if the employer’s complained about conduct covers or affects other employees, it may well be protected.

For instance, a health care rehabilitation facility in Muncie, Indiana distributed a communication policy governing employees’ use of social media, and informed employees that the policy had to be signed or else they would be terminated if they did not. One employee expressed her reservation to her co-workers that the policy as too broad since it imposed off duty internet restrictions. Upon her termination, she filed a charge with the NLRB in Indianapolis.

The Board’s Regional Director notified the company that it was prepared to issue a complaint and the employer settled the case by reinstating the employee and providing her back pay. Moreover, the Board ordered the employer to remove certain provisions of the social media policy and post a notice advising employees of their rights under the Act.

The lesson to be learned? Your non-union workers really have the same rights as a union employee if they band together and act in concert over legitimate workplace issues. When addressing terms and conditions of employment which affect a group, be mindful of the far reaching implications of “protected concerted activity”.

Article by Loren K. Allison, attorney at law
Call For A Consultation: (260) 466-5205

Written by Loren Allison

DO YOU HAVE APPROPRIATE INSURANCE?

DO YOU HAVE APPROPRIATE INSURANCE?

Needless to say, when you contemplate starting up and running a business, you need to undertake business considerations. More to the point, what sort of coverage considerations do you need to make to prepare for a catastrophe to you business?

My friend and colleague Arlen Stutzman at Arlene.stutzman@amfam.com provides some needed food for thought in protecting your business assets:

When is the last time you have reviewed your business insurance policies? Unfortunately, for many business owners it has been awhile. This is something that should be done annually with your insurance agent to verify your insurance coverages update as your business changes and grows. Here are some questions to think about?

Do you have the appropriate insurance to cover your business?

1. Property Insurance: To cover your building and/or business personal property (i.e. computers, desks, inventory, etc)?a. have you purchased new furnishings or equipment? May need to increase your business personal property coverage.b. Have you added additional space to your office or made improvements? May need to increase coverage for the building as well.

2. Liability Insurance: To provide liability protection tot he company and its employees as a result of injury to a person or property.

3. Professional Liability Insurance: Covers claims for malpractice or errors and omissions in rendering services. Are you subject to a risk for being sued for providing advice or services? This is not covered under your general liability policy.

4. Workers Compensation Insurance: Covers injuries to employees for work-related matters. If you have employees, regardless of full-time or part-time, Indiana state law requires Worker Compensation.

5. Health Insurance: Medical insurance plan for your employees and dependents. The Affordable Care Act has implications for businesses if guidelines are not followed, are you aware of the changes?

6. Life Insurance: Insurance payable upon death of an owner to fund a business continuation plan or on a key employee. Do you have a business continuation plan? Life insurance can help fund that plan in the event of owner/partner death. Do you have a key employee that if died would cause your business to lose money? A life insurance policy can assist with the loss and recruiting efforts to replace such an important person in your business.

These among other reason, are why the Arlene Stutzman Agency – American Family Insurance offers annual business insurance reviews with all business owners to ensure that your business is adequately protected. Please consider Arlene Stutzman Agency as your local trusted insurance advisor. Contact us for a fee no-obligation review of your business insurance needs and quote (260_ 637-9500/ Arlene.stutzman@amfam.com or www.astutzmanagency.com.

Written by Loren Allison

ARE YOU PREPARED FOR TECHNOLOGY DISASTERS

     My friend, Jerry Hill of Biz Tech has some common sense recommendations for you regarding our collective worst nightmare-computer disasters:

~
Imagine your answer to this question: “could your business continue to operate if all of your electronic documents and data were permanently lost?”  For many businesses, the answer is “definitely not”, but surprisingly, many businesses are not adequately prepared for a disaster.
When asked to consider a disaster, you may think: “fire” or “tornado”. While these threats are obvious, the likelihood of your business being affected by a fire or tornado is relatively low compared to other threats to your technology and data. Because of this misperception, disaster planning and security risk assessments are often not given a high priority.

However, most businesses will experience one of these significantly more probable disasters:

  • Computer viruses (malware) which can effectively be as destructive to your business as a fire or tornado.
  • Accidental deletion, corruption, or malicious destruction of data by employees.

Malicious virus and malware activity rises exponentially each year and is becoming increasingly more sophisticated. Additionally, businesses are actually more vulnerable as the average employee becomes more “computer savvy”. Further, the news is flooded with reports of security breaches to which even small companies are at risk.

You should consider the following:

  • How long can I afford to be without access my files and data?
  • Is my data backed up and stored off-site? Can I trust this backup and have I tested it?
  • Are my data backups automated and monitored daily?
  • Am I confident that my business is adequately protected against viruses and other malware?
  • Do I have sufficient security at the firewall, server, and computers and do I test it regularly?
  • Do I have written policies in my employee handbook about how employees can and can’t use technology?
  • Are new employees trained on security best practices as well as technology related policies in my employee handbook? Are employees periodically retrained?
  • Do I have model and serial numbers of my technology to report to insurance and the authorities if needed?
  • Am I required to be PCI or HIPPA compliant and, if so, am I? (note: companies with signed Business Associate Agreements with HIPAA covered companies must also be HIPAA compliant).

These are among the many reasons why Technology Disaster Planning and Security Risk Assessments are absolutely essential and why you must find a technology consulting partner you can trust to help you with your planning.

Please consider Strategic Business Technologies LLC as your trusted advisor and partner. The team at BizTech are experts in Security Risk Management and Disaster Planning for both small and large businesses. For a free consultation, visit www.inBizTech.com, call 260-490-9700, or email jhill@inbiztech.com

_________________________

BIO: Jerry Hill is the General Manager of Strategic Business Technologies LLC (DBA: BizTech) in Fort Wayne, Indiana. He is a Microsoft Certified Solutions Expert, Cisco Certified Network Associate, and has a B.S. in Business Management from Indiana University. BizTech’s highly-certified team partners with northeast Indiana area businesses to implement and maintain secure and reliable information technology systems.

Written by Loren Allison

WHY YOU NEED A LEGAL DOCUMENT REVIEW

For many small to mid-size companies, a personal problem or lawsuit can have a

catastrophic effect upon the viability of the business. My Legal and Disaster Planning Audit will examine a wide range of issues. The topics that must be addressed are:

  1. Disaster Preparation and Planning:

If all of your computers are stolen, do you have their serial numbers and the ability to recreate the data?

If you have a heart attack tonight, is there a plan for the business to work without you?

If you were unable to come into the office, could anyone find anything on your desk?

If one of your staff disappears with proprietary information, would you know what was taken?

Do you have a written disaster and recovery plan in the event of a fire or natural disaster?

2. Employment Issues:

Do your interviewers know what they can and cannot ask?

Do you have a uniformly and consistently enforced employee handbook? Have you read it?

Have your supervisors had input into its’ contents?

Does it contain a sexual harassment policy?

Do key employees sign a non-compete and confidentiality agreement?

3. Operating Agreement:

Do you have an agreement with your business partners that you have recently read?

Does it address stock membership or business unit matters?

How will your business be affected in the event of the death, divorce, retirement of a partner?

4. Contracts:

Are your customer agreements in writing?

Are there form contracts in use which have had a legal review?

Do you have an agreement with your sales people or are they independent contractors?

The items listed above are not all inclusive of course. Not everything can be written and documented, nor in many instances do you want to.

However, if you are faced with a legal dilemma, a well thought out document can save you pain, misery and attorney fees.

I will look at all of your business documents to assist you in maintaining business health and legal compliance. For a fee of $300.00 (my hourly rate), I will review all of your documents and make my appraisal, based upon my 35 years of experience.

Give me a call and we can get started today!

Article by Loren K. Allison, attorney at law
Call For A Consultation: (260) 466-5205

Written by Loren Allison

EMPLOYEE DISCIPLINARY PROCESS (PART 6) – Practical Considerations Series

Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040 This is part of a “hands on guide” to assist you in the legal discipline and discharge of employees as presented by Fort Wayne Business Attorney Loren Allison, covering the following topics & more! Download your copy by clicking here (PDF)

MINIMIZING THE RISK OF LITIGATION AFTER TERMINATION
Just because a person has been terminated does not mean the company will not receive some mail from or about that person. For example, you may get: (1) a letter from the employee; (2) a letter from an attorney and, if the employee does not immediately get a job; (3) a request for information from prospective employers or (4) a request for unemployment. Each of the four types of correspondence deserves its own distinctive response.

1. Letter from the Employee
a. Proceeding in the Face of a 22-6-3-1
“Service Letter Request”
I. If there is no written application, there is no legal requirement to answer.
ii. I.C. 22-6-3-1 requires that the service letter state the:
a. Nature and character of services rendered;
b. Duration of employment; and
c. Reason for termination.
Courts have found the answer to be libelous, if false.

b. “Blacklisting”
Indiana has a “blacklisting” statue which makes it a Class C infraction for an employer to prevent a discharged employee from obtaining employment with any other employer. Moreover, the statute provides that any attempt to prevent a former employee from obtaining employment elsewhere may result in the employer being liable for compensatory and punitive damages to the former employee.

Though the statute was amended to make employers “immune from civil liability” for the disclosure of information regarding current or former employees, another amendment to the statute provides that current or former employees who have applied for employment elsewhere have the right to request disclosure from a prospective employer of “any written communications from current or former employers that may effect the employee’s possibility for employment with the prospective employer.”

Therefore, employers must assume that whatever they write about an employee will end up in that person’s hands, and potentially the hands of their lawyer. This will enable the employee and attorney to scrutinize the documents and determine whether there is a foundation for a civil suit and a means of circumventing the immunity.

2. Letter from the Employee’s Lawyer
Turn such a letter over to your counsel because the real reason a lawyer is writing your company is because they are advising their client to sue.

3. Request for Information from New Employer
a. “Neutral Reference” Policies
Some employers have “neutral reference” policies which typically mean that they will only confirm the dates of employment and the job classification of the job applicant. The reason for such a policy is to avoid unnecessary legal entanglements that could result from a disgruntled former employee filing a discrimination charge or defamation suit alleging that he/ she was denied employment as a result of an unfavorable and/or untrue employment reference. The disadvantages of such a policy is, of course, that it largely negates the significance of the reference check as a whole. Frequently, having the employee’s written authorization to release certain specified information will persuade an employer to be reasonably candid and give more than a “neutral” response to prospective employers.

b. Job References
A policy concerning what information will be released to prospective employers who contact the former employer for a job reference should be established. Anyone who is in a position to receive a call from a prospective employer should be told in advance precisely what information, if any, will be given.

Remember, a favorable job reference may be used by a discharged employee to prove that his/her performance was satisfactory and that his/her firing was, therefore, improper. Be careful!

4. Unemployment Compensation
First, what the former employee himself states as the reason for termination can be of vital importance in subsequent legal proceedings. Often, a former employee can be discredited by statements made in an effort to obtain unemployment compensation where the employee subsequently attempts to deviate from what he/ she said at that time.

Second, what the employer states as the reason for termination is just as important for precisely the same reason. Just as with the termination papers mentioned earlier, it is imperative that the reasons set forth by the employer be reasons that can be lived with in the event litigation should ensue.

Third, an unemployment compensation hearing can be a useful tool as a means of “early discovery” to find out precisely what the former employee’s position is. Again, use it as a deposition/fact-finding conference.

While technically not material in any subsequent proceeding, a decision favorable to the employer by an unemployment tribunal may be of some value in persuading a subsequent finder of fact to rule for the employer again.

Article by Loren K. Allison, attorney at law
Call For A Consultation: (260) 466-5205

Written by waynedalerllc

EMPLOYEE DISCIPLINARY PROCESS (PART 5) – Practical Considerations Series

Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040 This is part of a “hands on guide” to assist you in the legal discipline and discharge of employees as presented by Fort Wayne Business Attorney Loren Allison, covering the following topics & more! Download your copy by clicking here (PDF)

POST-TERMINATION EMPLOYEE BENEFITS
The employee benefits law is a complex and highly regulated subject, encompassing such matter as wages, vacation pay, bonuses, sales commissions, qualified retirement plans, employer-provided insurance, and other fringe benefits. An employer who is not alert to the employee benefit implication of termination of employment can be exposed to considerable liability.

For purposes of our discussion, “employee benefits” is a broad scheme, encompassing wages, vacation pay, bonuses, sales commission, qualified retirement plans, employer provided insurance, and other fringe benefits. Some employee benefits are pervasively regulated. Wages are subject to federal minimum wage and overtime requirements and state wage claim laws.

Qualified retirement plans, as well as employer-provided insurance and other “welfare benefits plans,” are governed by ERISA-the Employee Retirement Income Security Act of 1974, and a never-ending parade of amendments, such as CORBA. Some vacation or bonus plans are subject to ERISA, while others are not. The courts in Indiana and other states have created common law rules regarding vacation pay, bonuses, sales commissions, and other such benefits in the absence of federal or state statutory regulation.

1. Payment of Wages
First, when must a company pay a terminated employee their final wages? In Indiana, the answer is relatively straightforward. An employer must pay a quitting or terminated employee the wages or salary due him/her on or before the next regular pay day for the pay period in which the separation from employment occurred. Failure to pay the total amount when due exposes the employer to a claim under Indiana’s wage claim laws. A wage claim may be brought by the employee and may be processed through the office of the Indiana Commissioner of Labor. Under the wage claim statutes, the employee may recover the unpaid wages, plus liquidated damages up to double the amount of wages due and treble damage recover–plus attorney fees.

2. Vacation Pay
A second issue concerns vacation pay. For companies which provide paid vacations but have no formal written vacation policy, under the common law developed by the Indiana courts, vacation pay is considered to accrue, and in the absence of a specific policy to the contrary, a terminating employee is entitled to a pro rata share of accrued, but as yet unpaid, vacation pay.

The same Indiana court decision which determined that vacation pay accrues also rules that claims for vacation pay are subject to the wage claim statutes. Therefore, an employer who fails to pay accrued vacation pay to a terminated employee is liable to the employee not only for the unpaid vacation pay, but also liquidated damages up to double the amount of vacation pay due, plus attorney fees.

It is important to note that this common law rule applies only when there is no established policy to the contrary. An employer may avoid the imposition of this rule if it adopts a vacation pay policy which provides that vacation pay does not accrue and that an employee is entitled to vacation pay only if they are employed on their anniversary date. In order to be effective, such a policy should be in writing and should be communicated to all employees, preferably either as part of a contract of employment or in a personnel or employee manual.

3. Sales Commissions
It is safe to say that any unpaid sales commissions derived from sales which were final and for which a company receives payment from the customer are due as compensation. These amounts, as well as any unpaid salary, are governed by the wage claim statutes previously discussed. More interesting questions arise with regard to commissions relating to sales which were “in the works” but not yet closed or paid for, by the date the employee’s employment was terminated. For example, assume that a salesperson had been negotiating a sale, but the customer did not submit its purchase order until after the salesperson was terminated. Is the salesperson entitled to a commission on this sale? Most likely not in Indiana, but courts have been known to do strange things. A written policy or agreement would remove any doubt.

What if the customer had submitted its order and the company had accepted it but neither shipment nor payment had occurred prior to the salesperson’s termination? In the absence of a written agreement, the general rule is that a salesperson is entitled to commission on a sale when the order is accepted by the employer, thus, the employee would be entitled to a commission on this sale. This general, court-imposed rule may be altered by a written agreement or by a clear practice which unambiguously demonstrates a different compensation scheme. I urge you not to attempt to rely upon past practice to avoid commission liability, but rather to reduce your commission program to writing.

What about an employer who pays its salesperson a specified minimum salary as an advance, or “draw” on commission: May the employer recover advances from a terminating salesperson when the advances exceed the commissions actually earned by the salesperson? The majority rule, followed in Indiana, is that the employer may not recover excess advances from an employee in the absence of an express or imposed agreement or promise to repay any excess of advances made over commissions earned. If, however, the employer and employee agree that advances exceeding commissions are deemed loans, they must be repaid.

A final question on the matter of commissions: What if an employer promised to pay a certain advance but when the salesperson is terminated, only pays the amount of commissions actually earned, which is less than the promised advance? The general view is that the employee may sue to recover the promised advance (prorated, presumably, through the date of termination), unless there is a contrary agreement that the employee is only entitled to commissions actually earned. Although there are no Indiana cases on this precise question, it seems likely that the wage claim statutes would apply to such a situation. Again, the lesson is clear–put the terms of the commission arrangement in writing.

4. Bonuses
If an employer makes a bonus a regular part of its compensation package or specifically offers to pay a bonus, a terminated employee may be able to recover some or all of the bonus in the absence of a specific agreement. Bonus compensation might even be subject to the treble damage and attorney fee provisions of the wage claim statues. Therefore, it is advisable that the employers make clear to their employee that bonuses are discretionary and not a regularly recurring or fixed component of compensation. Employers should also address, in writing, in what circumstances a bonus or partial bonus will be paid on termination of employment.

5. Qualified Plans
a. Overview
When I speak of “qualified plans,” I refer to employer-sponsored retirement and profit sharing plans which qualify for favorable tax treatment. If a plan qualifies, employer contributions to the plan are currently deductible without the participating employees being currently taxed on their interests in the plan, and earnings on plan assets are not taxed until they are actually distributed to a participant. Qualified plans are governed by ERISA.

A brief overview of some issues which arise in the context of the termination of an employee are:

b. Interference with Protected Rights
What if an employee claims he/she was terminated to prevent him/her from becoming eligible to participate in a plan? There do not appear to be any problems under ERISA for ex-employees who were not yet participants when there is a bona fide reason for their discharge. However, employers should be aware that ERISA prohibits an employer from discharging a participant “for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.”

Accordingly, the lesson which I urge you to take from these examples is that employers increasingly must be able to justify termination decisions to courts, administrative bodies and arbitrators, and must tread lightly in a minefield of legal regulation. Given the complexity of the problems posed by ERISA and the obvious serious consequences of a wrong decision, in a termination where any question of interference with ERISA-protected rights is involved, counsel should be consulted.

6. The “Flip Side” of Employee Obligations
Let’s consider the “flip side” of employee benefits; collection from a terminated employee who “owes” the employer money for tools, uniforms, shortages, and the like. Most employers would like to be able to deduct any amounts an employee owes from the employee’s final paycheck. In such event, an employer should proceed with extreme caution.

An employer cannot deduct amounts owed to it by an employee from his/her wages without a valid, written assignment of wages. In addition to being in writing, the assignment must, by its terms, be revocable at any time by the employee. Moreover, the assignment will be considered valid only if it is made for one of a limited number of purposes specified by law, one of which is the repayment of loans made to the employee by the employer if the loan is evidenced by a written instrument executed by the employee.

In the case of missing tools, your company may not deduct the cost of those tools without a valid wage assignment from the employee. Finally, you should also be aware that it is illegal for an employer to assess a fine against an employee and retain it or a portion of it from the employee’s wages. An employer who violates this law may be fined up to $500.00 plus court fees and attorney fees.

At worst, deduction of the money owed by a separating employee from his final paycheck may be considered an illegal fine. Absent a written wage assignment, it may, at best, be considered an invalid assignment of wages. In either case, an employer is prohibited by Indiana law from making the deduction, and the employee may recover the deducted amount, liquidated damages, and attorney fees under the wage claim laws. Unfortunately, without a valid wage assignment, the employer’s only recourse against the former employee may be a lawsuit to recover the money he/ she owes.

Employers should attempt to avoid this problem by having employees read and execute a checklist and acknowledgment as to company-provided property which must be returned upon termination of employment.

In addition, employees should also be asked to fill out wage assignment forms permitting the employer to deduct the cost of any loaned property which is not returned to the employer from the employee’s final paycheck.

Article by Loren K. Allison, attorney at law
Call For A Consultation: (260) 466-5205

Written by waynedalerllc