You state, “One of our newly hired exempt salaried employees who is still in the probationary period oversold his/her qualifications.  We are now requiring that the employee participate in additional training, while performing tasks that must be reviewed by his supervisor.  He is rarely at his desk, not responsive to criticism, stays late and is always emailing about his breaks, despite being a salaried employee.  He is now telling co-workers that the Company is violating wage and hour laws. What can we do?”

The unqualified, under performing employee who knows just enough about the laws to create claims is always troublesome to employers.  The key is to manage the situation correctly from the outset and not allow issues to snowball as is the case here that now puts the Company on the defense.

If the employee oversold his/her qualifications for an exempt position that now requires him/her to participate in training and perform tasks assigned under tight supervision, then the employee must be reclassified as a non-exempt employee during the interim time period.  That said, it does not mean the employee can manipulate the wage and hour laws by goofing off during work hours and purposefully delay or miss breaks creating liability.  Since the employee’s duties during this time period have now changed, it is important to obtain a signed document, such as a performance improvement plan, that sets forth exactly what is expected of the employee, addressing the issues that you have identified, including, designated work hours, break times, and required authorization for working overtime, as well as setting a firm date for re-evaluation.

Since the employee has now claimed that the Company has violated wage and hour laws, you have an obligation to investigate this also. If the employee is claiming unpaid overtime, breaks etc., the employee still has the burden of proving it. It is critically important that you properly document everything that has occurred from hiring until now, substantiate all of the shortfalls, and investigate the wage claims giving every benefit to the employee to refute retaliation claims.