ASK THE ATTORNEY

We missed this applicant's worrisome criminal conviction, so what now?

05/18/2015
Q: “We hired a sales manager last month who does a great job and acts in a very professional manner at work; however, one of the guys with whom he works found out through online research that he is a convicted sexual offender. He apparently attempted to commit the crime by engaging online with a minor. We never ran a background check. What should I consider before firing someone based on information like that? Can I fire someone based on the severity of the crime? Can I only background-check the management instead?"  – Rachel, Alabama

What's the difference between a 'formal' and 'informal' workplace investigation?

05/18/2015
Q: “I am taking investigations training and they make the distinction between a formal and informal investigation. I am confused as to what the difference is, since both in my opinion require the same process with regard to talking to people to find out information. I am obviously aware that investigations in general are required by law; for example, in allegations of harassment. Can you please explain the difference?” – Lara, New York

Our mandatory uniforms are pricier than most--can we deduct their cost from an employee's check?

05/18/2015
Q: “It's mandatory at our workplace that employees wear steel-toed boots. We will provide the boots, but would prefer to do so after the employee passes the 60-day probationary period to prevent providing boots to employees who walk out the door after only two weeks of employment. If an employee leaves earlier than 60 days, are we legally able to deduct the money from his or her final pay for the costs of the mandatory boots? I'd read that Indiana law does not allow employers to deduct the cost of mandatory uniforms from an employee's paycheck. Would I be able to legally deduct for boots or uniforms issued if the employee signed an agreement (wage deduction assignment)?” – Vickie, Indiana

Worker was only here for two weeks--should we challenge the unemployment claim?

05/18/2015
Q: “We employed a person for less than two weeks, and were able to notice she was not a good fit for what we were looking for. This person filed for unemployment and we appealed, providing some information about why she wasn't what we wanted. We talked to the employee about our expectations, but she wasn't able to perform. She still got the unemployment granted. Should we appeal again? There isn't a probation period to make sure a person is what she claims to be.” – Raquel, Alabama

Can a worker receive unemployment if he quit because of a lack of child care options?

05/18/2015
Q: “We have an ex-employee who admittedly left his employment voluntarily. His original unemployment claim was denied, but he appealed. Recently he went through a divorce; his reason for leaving stated on the OESC form was “unable to accept employment due to not having child care,” and that “he is not actively looking for full-time work. He wants to stay home with his baby for a little bit.” He also moved back home to help his Mom take care of everyday things because she is overwhelmed with her father and helping him take care of his kids. I was hoping you could give me some insight to what I should be doing to prepare for this hearing.” – Marchia, Oklahoma

Disabled employee wants to do more than we feel comfortable with--can we refuse?

05/07/2015

Q: “Is it disability discrimination to keep an employee from performing job duties listed on the job description?” – Anonymous, California

Can we discipline an employee for failing to alert us to what led to her injury?

04/28/2015

Q: “I have an employee who told me on Monday that she was hurt on the prior Thursday. While we will certainly take care of the injury and report it and offer care, we would like to write up a disciplinary notice for her not immediately reporting both the unsafe condition that caused the injury as well as the injury itself. May we do this?” – Kary, Maryland

How do we best comply with and support the Wounded Warrior program?

04/27/2015
Q: “We received a request to provide an internship to a participant of the Wounded Warrior program. The paperwork said that this person is still on active duty, being paid by his branch of service (medical insurance included), and due to be medically discharged later this year. We don't have an internship program in place (we are a machine shop under ITAR regulation). Besides following the advice of drafting an intern policy and making sure this person is not replacing an employee, should we put a time limit on this internship? Should we follow the same screens we do for paid employees (background checks, drug tests, I-9 compliance)? We do want to participate in this opportunity to help someone train and transition to a civilian career, but we want to make sure that we are doing it correctly.”  – Nora, Wyoming

No possible accommodations for an injured employee--now what?

04/20/2015

Q: “One of our drivers was in an accident with a company vehicle and hurt his wrist and now has permanent lifting restrictions. Our drivers need to be able to lift 90 lbs., but this driver can no longer lift this required weight and there are no accommodations we can make to help him lift this amount. We want to do what is right for our employee, but he doesn't have the job skills for other company positions. What process should we follow to make sure we are complying with all the requirements in dealing with this situation?” – Joel, Pennsylvania

Do Oklahoma employees have the right to see their personnel files?

04/16/2015

Q: “I have read various statements concerning employees in the state of Oklahoma having the right to see their own personnel files. Is this at the employer’s discretion, or do they have a right by law?” – Marchia, Oklahoma

Swapping benefits for pay: Is it legal?

04/13/2015

Q: “Is it acceptable for a company to negotiate with employees, on a case-by-case basis, for the company to provide higher salary in exchange for the employee not taking benefits that the company pays 100% for (such as life insurance, AD&D, STD and LTD)?” – Ed, Virginia

How do we go about reimbursing employee cellphone costs?

04/13/2015

Q: "Per our policy, we give all exempt employees a cellphone reimbursement of $80.00 per month. Does it matter if the cellphone bill/statement is in the employee’s name, or can it be in another family member’s name if they are in a family plan?" - Judy, Missouri

We want to call an employee who's out on leave--must we pay for that time?

04/13/2015

Q: “When an exempt salaried employee is on either paid leave or taking leave without pay, do we need to compensate this person if we need to contact him by phone in the event of a business emergency?” – Janet, North Carolina

Where does this employee's injury fall in the gray area of what's eligible for workers' comp?

04/13/2015
Q: “We allow our managers to work remotely from home and to only report to the office once or twice per week. One of our managers spent the night with a friend, did some work on her laptop there the next morning, and then got into a car accident on her way from the friend's home to the office to pick up some paperwork. Would this accident qualify for workers’ comp or not? She wasn't traveling from home to work, but she also wasn't traveling from work site to work site (in my opinion).” – Janet, North Carolina

Should we go to ICE with questionable documents found during a self-audit?

03/23/2015
Q: “While conducting an annual self-audit of employee files and I-9 compliance, I have encountered some questionable documents that I believe to be fraudulent. If I contact an ICE agent to verify these documents, will this then trigger a company wide ICE audit?” – Santana, Texas
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