ASK THE ATTORNEY

Is this employee a victim of retaliation, an FMLA violation ... or both?

10/27/2014
Q: “A friend of mine was out on FMLA that turned into short term-disability. She kept in contact with her employer, letting them know what was going on. A month before her return she asked if she would still have a job and the email back said yes. The day she went back to work, they released her and said that it was due to restructuring. The girl who replaced her is still doing her job, and my friend has proof (which she had previously showed HR) that this girl is a racist, and they swept it under the rug. We think she was let go because she brought that to their attention. Does she have any recourse against the company?” – Robin, Missouri

How do we get this employee to return company equipment after resignation?

10/20/2014

Q: “An employee in Texas has resigned and has not returned his company equipment (phone/computer), credit card or key. His final paycheck is not due until the next regular payroll, but each time he is approached to return the equipment, he makes excuses and keeps asking for the CEO to call him. I know we cannot hold his final paycheck, but what can we do to ensure he returns the company equipment?” – K., Texas

What does 'at-will employment' really mean?

10/13/2014
Q: “Our managers and supervisors believe that they can terminate an employee at any time by referring to their ‘at-will’ status. Will you please explain from the legal perspective what ‘at-will’ actually means? For example, I believe you can truly fire at will unless you violate one of the many laws regulating/protecting employee behavior such as FMLA, ADA and the like?” – Terry, New Jersey

What's the status of the DOL's new wage and overtime protections for home care workers?

10/13/2014

Q: “Our agency provides trained staff to work with individuals with intellectual disabilities in their homes and out in the community. We just saw the Department of Labor announcement regarding a time-limited non-enforcement period for mandatory overtime pay for home care workers, a policy that was scheduled to go into effect on January 1, 2015. Do we still have to start paying overtime for our employees starting January 1, or can we wait?” – Janet, North Carolina

Does a home care worker with possible disabilities need to be accommodated?

10/13/2014

Q: “We have a group home for adults with developmental disabilities (whom we refer to as consumers). We hire Direct Care Staff to work with the consumers on daily life skills, hygiene, meals, distribution of medication and community involvement. I hired a young woman who on the first morning of orientation said that she was bipolar, and had some anxiety issues and some learning disabilities. She will many times be the only staff member working with the consumers in our group homes. What happens when something sets her off or she is having a bad day and we do not realize it? Can we tell her that this position may not be a good fit for her?” – Valerie, Texas

When do we need to start worrying about charges of nepotism?

10/06/2014

Q: “We have two sisters who work in the same area in our company. Early in 2014 a restructuring took place, and now one sister is a regional manager, and the other is a store manager in her sister’s region. The ‘regional manager sister’ does her ‘sister store manager’s’ performance review, makes recommendations for raises, etc. This is affecting morale; other store managers are grumbling about unfair treatment. How risky is this circumstance? What is a recommended policy for relatives working in the same organization?” – Jeff, Massachusetts

What are the risks of automatic pay deductions for lunch breaks?

10/06/2014

Q: “Our payroll system has been set up to automatically deduct 30 minutes per day from our route drivers for their lunch since they are on the road, away from a computer, and do not have phones or devices to use to do this. I have concerns about liability for us; they could say they worked through lunch. Can you please give me the reasoning that applies so I can properly explain this to our officers?” – Kary, Maryland

Employee wants to earn less, not more--what's the possible downside?

09/29/2014

Q: “Can we pay an employee minimum wage for a position that usually pays more? We have an applicant who does not want to lose her pension benefits and can work for minimum wage yet still qualify to receive her pension. Can we legally accept her request for minimum wage of $7.25? Should we have her make that request in writing and notarized?” – Cindy, Texas

What are the state notification requirements when we stop offering health insurance?

09/29/2014

Q: “We are dropping major medical coverage; do we need to notify the states for which we have child support and medical orders?” – Belle-Anna, Texas

We suspect but can't prove a violation of our fraternization policy--when can we step in?

09/22/2014

Q: “We have a policy for our salaried managers that forbids them from fraternizing with hourly employees, and have suspicion that one of our married salaried managers is having an affair with an hourly employee; his wife is a manager for us in another location. We have not been able to prove the affair, but are worried the hourly employee could turn this into a harassment situation if he tries to end it (if it's true). We're wondering what legal exposure we have, or if we can terminate for a circumstantial situation. Do we confront the hourly employee?” – Diana, Oregon

Are we right in going forward with terminating this veteran?

09/22/2014

Q: “We are a small family service business consisting of 16 employees. I recently hired new three ones. One is an honorably discharged veteran. He has missed 13 days and is consistently tardy. Six of the 13 missed work days were for medical appointments at the VA hospital, and the others he claims were related for oversleeping, a car breakdown, etc. His VA appointments are all last-minute. Our policy is two weeks’ notice for any leave of absence. He explained this was not possible and that he also could not schedule them for after working hours (they end at 3 PM). I explained that this puts a hardship on our scheduling. Here are my issues: (1) During the interview process, at no time did he mention theses weekly to bi-weekly appointments. (2) He has discussed with other employees that he suffers from post-traumatic stress, which is why he goes to therapy. He has never discussed this with me, and I have never acknowledged knowing it. With this being said, his reviews from our chiefs are poor. He is described as lazy and unmotivated. He is not right for our line of work and his constant absences and tardiness are affecting the other employees’ attitudes. We need to get rid of him. We just let one of the other new hires go for excessive absences during the probationary period. My brother is hesitant and feels he needs to be handled with kid gloves due to USERRA and his PTSD. I feel we have every right to let him go but told my brother that if he chooses to give him another chance, it is with the understanding that he is again on probation for X amount of days. What is your opinion?” – Kathy, Illinois

Is this employee unfairly working the system to accrue PTO?

09/22/2014
Q: “Our company policy states that employees have to work a minimum of 32 hours a week to qualify for paid leave benefits. This includes accruing vacation. We have an employee who had surgeries done in a year. Since the employee has worked for us for five years, we were allowing him to accrue vacation even though not working full time. We were led to believe that he would start back full time soon. After a few months we informed him we could only allow him to accrue at half the current rate until he returned to full time, a minimum of 32 hours physically worked. He rarely works 32 hours a week, and has been putting down vacation time on his time sheet (anywhere from eight hours to an hour or two) to fill out the 32 hours. Every two-week time sheet has several hours of absences. I feel he should not be given the PTO benefit until he consistently works at least 32 hours per week, and/or the chronic absenteeism is addressed. The head of our company is concerned about a lawsuit if we let him go. Please advise.”

Can we withhold holiday pay if the days before and after are missed?

09/22/2014

Q: “Our employee handbook states that if you are sick before and after a holiday and you do not get a doctor’s note, you will not get paid for those missed days. Is this legal?” – Doreen, New Jersey

How much detail about our benefits plan should we include in the employee handbook?

09/14/2014
Q: “I’m working with a small business and their handbook. Should they include a safe harbor clause under the benefits section for their 401k plan? In the past, I have limited the amount of information on benefits in the handbook because they can change, and instead I just refer the employee to the summary plan documents.” – Ann, Kentucky

When an employee damages our property and then quits, is there any recourse?

09/03/2014

Q: “In the spring, an employee was working on a backhoe loading a bin when he pulled up to a concrete wall and tore off the door of the tractor. We could not find a door until last week. It was $275. In the meantime, he decided to quit. He gave two weeks’ notice. When we made his last check, we deducted $275 for the door. He called saying he had talked to a lawyer and we’d better give him a new check with the money back in or else he was going to sue. Can he do this since he owes us a door?" – Mary Ann, Oklahoma

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