Can an employer change an employee from salary exempt to hourly non-exempt as discipline for absence?

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Can an employer change an employee from salary exempt to hourly non-exempt as discipline for absence?

I have worked at same place for 34 years. I have major depressive disorder and migraines and employer is well aware. I have been continually tardy and/or absent numerous times for past few years. This week I was changed from salary exempt to hourly non-exempt as punishment for missing work. My job duties have not changed. Several other employees are late most days. Most of us work later to make sure we get our work done, but the company does not track time for any salary employees, except to scan our security badges and know what time we entered the building. Has my employer done anything illegal? They have also required me to go to EAP counseling.

Asked on March 1, 2018 under Employment Labor Law, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, they have not done anything illegal. Your write that you have been "continually tardy and/or absent numerous times for past few years." Even if an employee has a medical condition, he or she is not allowed to miss work or be late to work--allowing an employee to be tardy or absent is not a "reasonable accommodation" which an employer is required to make and they could even terminate you for absences or being tardy; rather the employee is required to be at work when he/she is supposed to be. Since they could terminate you, they can clearly make changes to your job or classification, which is also supported by an employer's general right to define, control, and change an employee's job at will. 


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