How do we pay someone who works from home during maternity leave

T

txls

Well-Known Member
Jurisdiction
Texas
We have a sales rep who gets incoming sales leads to her phone. During her maternity leave she would like to continue receiving and responding to those leads and making appointments. She is normally paid by the hour plus bonus for appointments that lead to a sale. She has asked if she will still get paid her bonus for sales, but my concern is that we also need to pay her for her time, and also NOT count her working time against her FMLA time. Her actual working time may only be a few minutes at a time sporadically throughout the day. Should we have her estimate her total working time per day? Any other suggestions?
 
txls said:
Any other suggestions?
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Let's look at the law before I begin blabbing:

Family and Medical Leave Act (FMLA)

1. FMLA applies to any public or private employer with 50 or more employees, as well as to all public agencies, and public and private elementary and secondary schools, regardless of number of employees.

If you don;t have 50 employees, FMLA doesn't apply to your organization.

Family and Medical Leave Act (FMLA)


Maternity Leave Rights in Texas


You might be headed for muddy, if not troubled waters by allowing her to get paid on FMLA leave.

You could discuss several alternative options with her, avoiding the issue of FMLA leave, per se.

First there is this to consider.

The FMLA leave scheme was designed to be unpaid.

You might consider allowing your employee to use accrued paid leave during her FMLA UNPAID leave.

If she has two weeks of accrued vacation time, she could choose to use that to receive pay during her FMLA time off.

Now the next part gets tricky.

If she remains employed, her benefits continue, if there are any beyond her periodic pay periods.

Some employers in Texas offer salespeople a commission for each sale.

In effect, she becomes a commission agent during the FMLA leave.

I am not suggesting you do so, and I don't fiddle with the FMLA scheme as designed, unpaid leave.

Once an employer starts fritzing with laws, you tend to get screwed, if not sued.

In certain cases, I have simply chosen to GIFT to certain "KEY" employees (occasionally loyal employees) a month's pay during their FMLA leave.

Again, be careful doing that, because well intended actions often are misunderstood by the evil people of this world.
 
Have her keep track of the time spent working; there are lots of computer programs designed to do just that (and by extension, I'm sure there are phone apps as well). Have her send screen shots of the call times (most phones track the length of the call) to verify her reported working time; don't forget to pay her for the 'admin time'.

As far as the rest of your question, I will defer to the HR folks here.
 
Oh yes I see the muddy waters churning. That's why I'm here asking for advice. My thought was that whatever time she turns in as time worked, would not be counted as FMLA time.
 
txls said:
Oh yes I see the muddy waters churning. That's why I'm here asking for advice. My thought was that whatever time she turns in as time worked, would not be counted as FMLA time.
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Tracking hourly time is opening a can of dead, malodorous, putrefying worms.


How much do you expect the person MIGHT earn each week?

How many people do you employ?

This is what the DoL says about pay during FMLA:

FMLA leave is unpaid leave. However, if you have sick time, vacation time, personal time, etc., saved up with your employer, you may use that leave time, along with your FMLA leave so that you continue to get paid.

https://www.dol.gov/whd/fmla/employeeguide.pdf
 
In addition to the federal Family and Medical Leave Act (FMLA), some states have their own comprehensive family leave laws that may also require employers to grant employees time off for the birth or adoption of a child or to care for a family member with a serious illness.




Texas does not have such a law for private employers.

Be very careful, if you proceed down this path, very careful.

My inclination would be to say, sorry, no can do.

However, "INSERT EE NAME HERE", enjoy your unpaid time off.

Texas Leave of Absence (FMLA) laws & HR compliance analysis
 
We have dealt with this in the past with a couple of employees. Whatever time they turned in as time worked was not counted as FMLA time.

Because of the intense scrutiny applied to banks as far as information security is concerned, if an employee is allowed to work from home, it must be done on a company-owned laptop and then, if needed to verify the hours worked from home, the supervisor has a program where they can log on and see the exact hours the employee at home was logged onto the laptop.

Those who have done it before were also long-term employees deemed very trustworthy in terms of not falsifying their working time or anything, so we could count on them to be very strict in recording their time worked.
 
I've been on FMLA maternity leave in TX and worked while doing so (back in the early days of FMLA!) It is very easy to do, but harder to track. It's doable....but not required that you allow it...

First I'd have the employee put in writing that it is her request to do so (with no pressure from the employer). Last thing you want is a claim she was coerced into working. Personally I needed the $s back in the day and was more than willing to put that in writing. I'd make absolute sure she was initiating the receipt of leads each time she wanted more and turning in the time worked but wouldn't be expected to respond to other work-related matters outside of what she initiates (draw boundaries firmly).

I'd then have the employee track hours worked and pay on a previously agreed upon rate that is at least minimum wage. As for the commission/bonus plan, that is again something that should be agreed on in writing prior to any work. I would keep it the same as normal if you can. But you might need to subtract out the minimum wage hours if you normally take a credit for that.

any actual time worked would not count against her FMLA 480 hour allotment (assuming 40 hours for 12 weeks protection) and you should track it at the smallest increment you normally track payroll hours.

If this is a good employee that you can trust - I'd go with the basic minimum wage plus commission/bonus that she only earns with a sale. That way in the future if you have another such case you wouldn't be bound by a larger wage requirement.
 
First, I would make sure her doctor has cleared her to work. If you have a disability plan (or even an FMLA policy) see what it says about working. I would also take a hard look at whether or not his is a precedent you want to start. Does she normally work from home/remotely? Do others in her role? If not, do you really want calls going to her personal phone? Does she have a dedicated office space and adequate child care to be able to take calls as needed without being distracted by an infant? Those sporadic calls might come in while the baby is feeding, or trying to nap, or she is otherwise occupied. How much time are we really talking about here? Does it make sense for her to perform this portion of her job while on leave?
 
All good questions and valid points. I think mgmt has already told her she can do it, so it's not up to me to say no, just trying to make sure we do it as "correctly" as we can.
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Then I would make sure you have doctor's clearance, a clearly defined outline of expectations- preferably signed by her, and some means of tracking how long she spends working. That might be a phone log with the length of phone calls highlighted, or some other means.
 
Do you offer short term disability insurance? Does she qualify for it? If so, you've got a whole different circus and a completely different barrel of monkeys. If STD enters the mix, I would strongly advise that you tell her No.
 
That makes it easier in one respect. In that case I'd go with Elle's and hr for me's recommendations.
 

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