Need Legal or Human Resources Advice - re payment of bonus to W/C emp

[Tidybuoy]

I need some advice from the experts in Human Resources or Legal.

I have an employee that is out on a workers comp leave. This particular employee is suspected of a fraudulent claim and our insurance company is currently doing an investigation on this employee.

Not only do we feel that the claim is grossly overstated, this person is also suing their former employer for a workers comp claim that was never disclosed in our own w/c process. As a result, we recently found out that our insurance has been paying medical bills that are related to the former employer's claim in addition to an auto accident issue as well.

My Question:

I just paid out quarterly bonus to all my employees and my human resource manager is telling me that I have to pay this employee as well because he is technically still employed and was here during the bonus periods (I'm paying the 1st 3 qtrs. of 2013).

I hate the thought of mailing a bonus check to someone who was a terrible employee and is possibly defrauding me now. Can I hold the check until he returns without being guilty of retaliation? The bonus is not guaranteed and is discretionary but the discretion is based on what the company will pay out and then is applied equally to all employees.

Any advice or direction to a link that I can uses as support would be much appreciated. Thanks in advance....

[mreid]

What does the bonus plan say? Most exclude those on on std or wc. Most are also based on performance. Most are also discretionary. Your HR dude is accountable for the plan. Sounds like you need a new HR dude. You do not have to pay it and it is his job to ensure you don't.

Signed,

30 year HR executive

[ossiblue]

Not being in HR, I will defer to mreid.

However, you state that your bonus plan is "not guaranteed and is discretionary but the discretion is based on what the company will pay out and then is applied equally to all employees." I interpret that statement as the bonuses are not tied to performance and the discretion is really the amount of money, if any, the company is willing to pay each quarter. It clearly states the money will be applied to all employees equally so this person should qualify if he was employed at the time.

Now, the above is based on your information in the post. If your understanding of the bonus policy is not the verbatim language of the policy, then talk to your HR manager and get the interpretation.

[John Rogers]

I would suggest getting a lawyer to handle the legal language.

[wdfifteen]

Originally Posted by Tidybuoy

As a result, we recently found out that our insurance has been paying medical bills that are related to the former employer's claim in addition to an auto accident issue as well.

I would look into holding the bonus pending the outcome of the investigation of this possible fraud.

[fireant911]

I am not a HR person but my wife was for 15 years before a career change. My advice is to 'grin and pay it'. This person sounds as if they have a history of filing claims. Paying the bonus will not allow them to claim that your actions were in any way retaliatory. The amount of the bonus is probably far, far less than the hassle they can create... some people make their entire careers out of doing this stuff. It is not worth the headache - save yourself the grief and pay... and, yes, it stinks that people do this.

[Tidybuoy]

Thanks all!

Just to clarify, this is not actually a bonus plan but more of an incentive plan that is paid to all employees based on certain factory goals achieved (i.e., lbs. produced, labor efficiency, and waste %).

I cannot just fire our HR Dude as mreid suggests as our hr lady has been with the company for only 2 months. The plan was loosely documented and has only been in place for a year. I'm struggling to get a formal documentation of this plan and I am also new with the company and have only been here since May. The company grew from small (under $10mil) just a few years ago to much larger ($100mil+) and so we are experiencing growing pains and much of the higher management has been added within the past year.

I'm guessing that since this is a "profit sharing" type incentive, I probably owe it to all employees, including the one out on W/C since he was here during the covered period. I don't think I will run to the mail box though.

[Bob Kontak]

Originally Posted by fireant911

My advice is to 'grin and pay it'.

Unless you can identify what specifically excludes him. Pay the bonus.

All he/she needs is a no fee lawyer and a half baked excuse and you are out tens and tens of thousands in legal fees and you may lose.

[TimT]

I can't add anything regarding the labor laws etc...

About 25 years ago I resigned from a job, and took a similar position at another company. I resigned from job A in March and within a week I was working for job B....

Well fast forward to the holidays the following December... I received something in the mail from job A... I thought "wow" this is early to receive a w2...

It was a bonus check!!!! I called my old supervisor at job A and mentioned that I got bonus check, and had not worked for the company for about 9 months... He just said that the company likes to take care of employees who contributed the bottom line...

When things started to go south with company B, I called supervisor at company A and was rehired on the spot...

I've been back with company A for 25 years since...


Sorry for the hijack.... I'd try to find any avenue to avoid paying this guy...

[TimT]

This is a snapshot of the Mission Statement/Strategic Objectives for company A who I am still with...

The Strategic Objectives of the ___ organization are as follows:

• Employee Satisfaction

• A Quality Product

• Client Satisfaction

• Financial Strength

• Manage Risk

• Goals Oriented Management

• Continued Growth

It is a little unconventional..

[JeremyD]

In California you are better off paying it. Most states look unfavorably on with holding any compensation, especially if an employee is on Worker's Compensation.

You can always keep it in a desk somewhere and forget to put it in the mail.

[David]

I'm not in HR or a lawyer, but my 2 cents from similar issues I've seen:

If the bonus didn't stipulate that it was based on hours actually worked or something to that affect, I'd go ahead and pay them. It makes the firing process that much smoother if it comes to that. Think about when a cop screws up and the news report states that they're relieved of duty with pay. That usually means they're doing everything by the book so they can fire them.