Unauthorized Overtime, Nursing Mothers, and Cannabis Use

It’s time again for our HR Basecamp roundup. If you’re new here, every other week we take the most popular submitted questions from our HR Basecamp Facebook group and go more in-depth on the answer. Join the over 10,000 other office managers and business owners in the group here to submit your questions and participate in the discussion!

Podcasts and Resources in this Roundup: Nursing Mothers in the Workplace: Legal Requirements and Kind Accommodations - What the Hell Just Happened?! Episode 402: My Employee Smells Like Cannabis

CEDR Members Only: HR Education Webinar: Substance Use and the Workplace

No matter how many times I ask, my front desk employees can’t seem to finish up the day on time. My handbook says that overtime has to be approved by management. Can I tell them that if they keep working beyond their scheduled hours that time won’t be paid if not approved?

The legal side of things: Stop! Do not pass go! This is a wage claim waiting to happen. The Fair Labor Standards Act requires that you pay non-exempt employees for all hours worked, even if they technically weren’t approved. We understand how frustrating it is when an employee works unauthorized overtime, but that doesn’t mean that time can be unpaid. If an employee later filed a wage claim against you, it would be a slam dunk win for them.

Now for the human approach: It’s worth taking a minute to review what is causing these employees to not finish their work on time. Do they have the tools they need? Is the workload they’re expected to finish reasonable for the amount of time given? Have they received the training they need to finish their tasks on time? If the answer to any of these is “no,” we recommend having a detailed discussion with these employees about what you can do to improve their ability to get things done.

If the issue is simply that the employees are slacking off during the day or purposely staying late to get the overtime, there are other steps you can take to address this issue. Since you’ve already spoken to these employees about this multiple times, a corrective action for not adhering to job performance standards is an appropriate next step. Stick to the facts: these employees are not getting work done in a timely manner and have been verbally coached about this several times. If the problem continues, you’ll still be required to pay them for any overtime worked, but you can move forward with further corrective action or even termination.

You can also take measures to get them back on track with getting their work done promptly. For example, stepping in to make them clock out and leave on time each day so there is no overtime worked. Then it becomes an issue of whether the employee is able to turn things around and get their work done when they realize working overtime is no longer an option. Your bonus program criteria can also incorporate eligibility requirements such as not working unauthorized overtime and performance metrics. If not getting their work done in a timely manner results in them not getting a bonus they were otherwise expecting, things may turn around pretty quickly.

CEDR members can contact the Solution Center via backstageHR for custom corrective actions and separation guidance.
I know I’m required to provide nursing mothers with breaks, but do I have to pay them during these breaks? Some employees take three breaks a day.

The legal side of things: Federal law requires that you allow employees the time they need to pump. The amount of time needed, and number of breaks, can vary greatly from person to person. In some states you have to pay for this break time, in other states you do not.

Even in the states where pump breaks can be unpaid, however, you need to ensure employees are only being made to clock out when their break time exceeds the amount of break time that other employees routinely get to take.

If you have been providing paid time and don’t think you need to based on your state law, you can adjust these pay practices. However, we strongly advise looking closely at what laws apply in your jurisdiction and if possible, speaking directly to an HR expert, before making any decisions.

Now for the human approach: The law doesn’t specifically say what is considered a reasonable break time, or set a limit to how many nursing breaks can be taken each day. If you’re concerned about how many breaks an employee is taking (compensation aside), the best approach is to discuss the employee’s needs with them directly.

It’s okay to ask an employee to provide specifics i.e. when she needs breaks, how long she expects them to be, and how long she’s planning on needing breaks. This will help you schedule each day accordingly, especially if you have multiple employees needing nursing breaks.

Unless you have some objective evidence that the employee is taking advantage and not actually needing the breaks she’s taking, it’s not a good idea to approach the employee like she’s doing something wrong. She has a legal right to those breaks, and everyone’s needs are different and subject to change when it comes to pumping.

It’s a good idea to document your discussion with the employee and make a note in her file so you have her requests on record. The HR Vault makes this easy.

You can learn more about the legal requirements and accommodations related to nursing mothers in this blog.

I’ve noticed the smell of cannabis on one of my employees several times. How do I address this? I’m worried this means they’re coming into work high.

The legal side of things: Cannabis may not be legal at a federal level, but that hasn’t stopped plenty of states from passing laws to protect cannabis users. While these laws don’t give employees a pass to come to work under the influence, some do limit an employer’s ability to take adverse action based on off-duty cannabis use.

However, smell is not the same thing as impairment. If you’re noticing the smell, then take the time to objectively observe the employee and see if there are any signs of actual impairment. If there are, then you likely have reason to send them to be tested. If not, you don’t want to jump to an assumption.

Our general guidance for this kind of issue can be applied across the board, but keep these laws in mind if you plan on disciplining an employee based on confirmed or suspected cannabis use. Better yet, reach out to an HR expert to help walk you through it.

Now for the human approach: Assuming there haven’t been any visible signs of impairment and your only indication that the employee might be a cannabis user is the smell, then that’s all you need to address. Focus on the facts, not assumptions (i.e. the dates you smelled it, how the smell can cause concern from patients, etc.).

This is where your employee handbook comes in! Your dress code policy should address hygiene and strong odors. This is the policy you should point to when speaking to the employee.

Again, the smell is your main concern here. Give the employee the facts and give them an opportunity to explain. Now that the issue has been addressed, they can take steps to make sure it doesn’t happen again.

Remember to document any conversations you have with the employee. Since this isn’t at the point where a corrective action is needed, documenting can be as simple as leaving a note in their file. Those of you using the HR Vault can do this with just a few clicks!

Are you a CEDR member? Did you miss our recent webinar about this topic? Log into backstageHR to watch the recording in the Training Center!

Extra credit listening: What the Hell Just Happened?! Episode 402: My Employee Smells Like Cannabis

Apr 8, 2024

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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