ASK THE ATTORNEY

Employee wants to resign right after FMLA leave--so do we have to grant it?

01/03/2017

Q: “I have an employee who made her plans to resign and relocate to another state known to co-workers. Her intent to resign was not put in writing. At some point after sharing her plans, she requested FMLA leave due to the adoption of a child. When HR received her request for leave, she was asked to clarify her intent to resign. The employee states she does not have a definite date of resignation. However, she did confirm that she has no intention to return to work following leave. Does the pending resignation stop our FMLA obligation? Should the employee be granted FMLA leave even though she has no intention of returning to work? Should a designation notice be issued?” – Kaleista, Ohio

Who can draw up employee contracts, and who cannot?

01/03/2017

Q: “Is it illegal for an HR consultant, and owner of a consulting firm, to draft a severance agreement for the consultant’s client employees? An agreement was approved by the client's attorney as valid in content exactly as presented to an employee. However, the employee is questioning the validity of the agreement because it was not drafted by an attorney.” – Mary, Florida

Can we deduct from an employee's paycheck if an advance isn't repaid?

01/03/2017
Q: “Can an employer legally deduct ‘reimbursements’ owed by an employee via the employee’s paycheck? If so, what process or forms need to be in place? When is it never allowed? For example: A company lends money to an employee in an emergency as a loan, and has the employee sign an agreement to pay back such loans.” – Chuck, Illinois

It seems like FMLA leave, but if an employee doesn't think so, must we designate it as such?

12/19/2016
Q: “An employee will likely need to take some intermittent days off to care for her mother [according to documentation from a medical provider]. The employee does not want this time off designated as FMLA because she assumes it will only be a limited number of days off. Am I required to designate the time off as FMLA?” - Charlene, California

We'll pay salespeople for unused leave time--but can it be at the minimum wage?

12/19/2016
Q: “In the state of California, for our employees working on 100% commission (they take a biweekly draw against their earned commissions), can we pay out unused PTO time at retirement, termination or voluntary separation at the current rate of minimum wage?” – Stephanie, California

How careful must we be about discrimination when hiring our Santa?

12/12/2016

Q: "We are hiring a Santa Claus to work at our independent retail store. We want our Santa to look as close as possible to the legend that children are used to seeing. Is it illegal to lean toward a white candidate with a white beard as opposed to a black candidate?" - Calvin, Minnesota

When the state mandates training for our staff, are we the ones paying for it?

12/12/2016

Q: “Our business is a for-profit private school. If the state of Virginia requires state-mandated training before individuals can be employed to work directly with children at the school, are we required to pay our hourly employees for that training before they start? Additionally, the state requires 16 hours of yearly ongoing training hours for all staff working directly with the children. Are we required to pay hourly staff for these hours even though it is a state-mandated requirement of employment to work directly with the children?” – Lisa, Virginia

She returned from leave to find her job had been made obsolete--what are our obligations?

12/05/2016
Q: “We have an office manager who was offered a position in HR dependent upon continued education. She elected to not stay in the role within HR. She had to go out on leave (non-FMLA), and during her leave of absence we restructured our regions and no longer have an office manager role—we are filling with a higher level admin support position. We have offered her other positions that she has refused. What are we obligated to do for this employee? If she refuses other positions, should we have a reasonable belief that she is not returning and has vacated her employment?” – Bobbi, Arkansas

Do the new overtime rules affect timekeeping methods?

11/07/2016

Q: “With the new overtime rules, is there any requirement to maintain signed time cards if you have an automated timekeeping system that employees sign in and out of?” – Jo Ann, Tennessee

Can paid time off benefits be tied to performance?

10/31/2016

Q: “Can an employer require a certain job performance level in order for an employee to be awarded PTO benefits? Can it award different amounts of PTO based on different levels of performance? Finally, can an employer in North Carolina not pay out PTO when an employee resigns with sufficient notice, even though the employee has days earned but not yet used at the time of resignation?” – Cristy, North Carolina

What privacy concerns surround the use of an employee's image?

10/31/2016
Q: “What is the protocol on having an org chart board with pictures of employees hung in an area where any employee can see it? Does it need to be hung in a place where it isn't in plain view?” – Jeannine, Utah

Have we overshot with our requirement of a college degree for an admin position?

10/11/2016
Q: “What do you say to a manager determined to post a job description for a position traditionally performed by an administrative assistant, but who is now requiring a bachelor's degree for this exempt position?” – Anonymous, Washington

His ex-wife stayed on his insurance plan for years--is she now COBRA-eligible?

10/07/2016
Q: “I took over this position and just found out that an employee kept his ex-wife on his dental insurance plan after they were divorced. He has a new wife and I was adding her onto the coverage when I noticed it. Do I need to offer COBRA when I just found out they divorced in 2011, or do I just remove her?” – Michelle, Massachusetts

What are the overtime pay rules for salespeople and drivers?

10/07/2016
Q: “Our salespeople work out of the company office making phone calls and also visit customers to make sales. Currently they are paid a weekly draw which is then deducted from their commission check, which is paid annually. Are we required to pay them hourly now? If so, is it still OK to deduct their weekly check totals from their commission check that is paid annually? Concerning drivers, if a driver drives both in-state and out-of-state, are we required to pay overtime?” – Em, Missouri

How do we help an employee who falls outside the scope of the FMLA?

09/26/2016

Q: “How do I offer additional time off to a new employee who is not eligible for FMLA but who suffers from migraines? We are exploring an adjusted work schedule through the ADA. Can she can have any protection under the FMLA even though she hasn't been on the job long enough? If we allow her to continue to take unpaid time off, that will become a violation of our sick leave policy. How do I help this employee in a way that will provide her with protection from being fired due to her excessive absenteeism?” – Arvis, Wisconsin

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