Q. If a pregnant employee is salaried and is missing two days of work a week, can we legally make her an hourly employee? When the employee was hired, her contract should have been hourly. Is it legal to change the basis of her pay now? —C.H., Michigan
A. Maybe. An employer is generally free to pay an employee who would otherwise be exempt by the hour instead of on a salary basis unless there is a contract to the contrary or the employer wants to do so for an illegal reason. First, examine her contract to make sure you will not be breaching the agreement.
The next obvious concern is being accused of. Examine how you have treated nonpregnant employees under similar circumstances. If, for example, you once had a male employee who missed a couple of days of work a week for physical therapy after a car accident and you did not change his method of payment from salaried to hourly, then we would recommend against doing so in this case.
If you decide to begin paying her by the hour, you must notify her in advance that you will be changing the manner in which her pay will be calculated. In addition, you have to begin paying overtime if she works more than 40 hours in a week.
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