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Firing Employee for Family-related Absences, FMLA?

October 22, 2013


Question:

Jennifer,

I have a loaded question for you (how is that for a start of a discussion).  I have an employee that has been great but generally takes off many days for family obligations (sick child etc...).  we are getting frustrated with this and may need to terminate her employ.  The group right now has 5 staff members (including her) and me.  Based on the size of the group I just want to make sure we are not subject to FMLA regulations. 

Thanks, Dr. B

Answer:

Dr. B, you are not subject to FMLA (which applies to 50+ employees).  Sorry to hear that a good employee is just not cutting it with hours.  Be advised that even though you do not have to adhere to FMLA standards for absences due to family illness, etc., you are still barred under State law from firing due to a discriminatory reason.  Here, you have a reason for terminating - the employee sounds as though she is tardy or absent on a fairly regular and noticeable basis.  It is always best to have documentation, and the better the documentation the more secure you should feel in your firing practices.   Make sure you have a record of absence/tardiness.  If you want more guidance, just let me know and we can assist by preparing a release if you are offering severance or providing general guidance. 



Comment on Have W-2s who are also 1099s? Or not sure?

Hi Jennifer –
 
I hope you have been well. Thanks again for keeping me on the newsletters.
 
On your last newsletter you may want to include that even if the employee is considered a “1099 or independent contractor” the employer, in most cases, still must provide Workers compensation & New York State Statutory Disability for them. The following are factors that a judge will consider to determine whether an individual is an independent contractor, and thus not an employee:
 
  1. Control the time and manner in which the work is to be done; and
  2. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year;
  3. Maintain a separate business establishment from the hiring business;
  4. Perform work that is different than the primary work of the hiring business and perform work for other businesses;
  5. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income.
  6. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number;
  7. Have recurring business liabilities and obligations;
  8. If it has business cards or advertises, the materials must publicize itself, not another entity;
  9. Provide all equipment and materials necessary to fulfill the contract; and
  10. The individual works under his/her own operating permit, contract or authority.
 
It is very important that your clients understand these rules as they could be penalized up to $1,000 per ten day period of non-compliance. I’d be happy to review your clients existing workers compensation coverage’s to confirm that they are in compliance with the NY State WC Board requirements should anyone be interested. Feel free to send them my contact info.
On a separate note, when you are available to get together? We should catch up.
Thank you,
Lawrence

Lawrence J. Papola III
t. 516.629.9056 | f. 888.929.6565 | c. 516-779-5611
786 Walt Whitman Road, Melville, NY 11747
 

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