Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
The end of the school year is a crazy busy time, and I am so grateful for the work of my administrative assistant, who helps me run this large middle school as principal. She is in the office bright and early, and she stays as late as necessary to get the work done. She prepares a “TO DO” list for me each morning, and she answers parent phone calls with diplomacy and charm. In short, she is a gem, and I don’t know what I would do without her.
I would love to recognize her special contributions, but in these litigious times I am wary. If I give her a nice present in recognition of her great work, will the other two administrative assistants in my school be able to demand equal treatment? They are nice enough, but, unlike my favorite, they never go above and beyond the call of duty.
Grateful but Guarded
Dear Grateful:
Legal Mailbag shares your appreciation for the important work that administrative assistants do and joins you in noting that the end of the school year is a crazy time. Legal Mailbag can and will address the concern that you raised. However, Legal Mailbag is concerned that you are missing a bigger issue, one that could cause you and your district legal problems down the road.
Presumably, your administrative assistant is what we call a “non-exempt” employee, an hourly employee who is not exempt from the wage payment and overtime laws. Under the federal Fair Labor Standards Act and our state equivalent, non-exempt employees must be paid for all “hours worked.” Conn. Gen. Stat. § 31-76b provides in relevant part:
(2) (A) “Hours worked” include all time . . . during which an employee is employed or permitted to work, whether or not required to do so. (Emphasis added).
In plain English, if you know that your administrative assistant is working outside of her prescribed workday, by law she must be paid, whether you direct her to work or just enjoy the fruits of her voluntary labor.
The wage payment laws are “remedial legislation,” i.e., laws enacted for the public welfare. Such laws are broadly construed and cannot be waived. While Legal Mailbag is all for excellence and individual initiative, this strict rule makes good sense from a public policy perspective. If employers were not responsible for paying wages for hours that they “permitted” employees to work, some employers (certainly not you!) could subtly or not so subtly encourage employees to put in extra hours without compensation.
As to your original question, your desire to recognize the special contributions of your administrative assistant is laudable. However, such recognition could also be problematic. Is your administrative assistant a member of a bargaining unit? If so, you cannot provide any significant bonus or valuable consideration unilaterally because compensation for employees in all forms is a mandatory subject of negotiation. Perfect attendance or other bonuses, for example, must be negotiated before such plans can be implemented, and Legal Mailbag still bears the scars from trying many years ago to negotiate with teacher unions over differentiated compensation based on merit.
Presuming that your administrative assistant is in a bargaining unit, what you can do on your own is a matter of degree. No one is going to complain if you simply show gratitude, and you may even be able to get away with giving her flowers to thank her. However, any more significant recognition may create union problems, either because the union claims that you have unilaterally changed working conditions without bargaining or because the union will demand that the other administrative assistants get equal treatment.